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UNDERSTANDING

SEXUAL VIOLENCE

Prosecuting Adult Rape


and Sexual Assault
Cases

2001 National Judicial Education Program*


*A project of Legal Momentum in cooperation with the
National Association of Women Judges

Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

National Judicial Education Program*


Lynn Hecht Schafran, Esq.
Director
Roberta Maria Baldini, Esq.
Project Attorney
Claudia J. Bayliff, Esq.
Project Attorney
Alison L. Stankus
Program Assistant
Marta Brodsky, Aimee Fitzpatrick, and Zabrina Rodriguez
Legal Interns
Kimberly Bachechi, Soni Midha, Sarah Spencer, and Andy Shie Kee Wong
Interns
With additional support provided by:
Robin C. Mathiesen, Danielle Di Novelli-Lang, Dalia Moss, Amarah K. Sedreddine, and
Amita Y. Swadhin

*A project of Legal Momentum in cooperation with the


National Association of Women Judges

2001 National Judicial Education Program

ii

Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

Funding
This program was developed with funding from the Department of Justice, Office of Justice
Programs, Violence Against Women Office. Funding for the interns was provided by the Everett
Foundation and the Helena Rubenstein Foundation.

American Prosecutors Research Institute


Newman Flanagan, President
Steve Dillingham, Chief Administrator
George Ross, Director, Grants Management
Debra Whitcomb, Director, Grant Programs & Development
APRI's Violence Against Women Unit
Lisa Kreeger, Program Manager
Tracy Bahm, Senior Attorney
Susan Kennedy, Senior Attorney
Millicent Shaw, Staff Attorney
Tamara Kitchen, Administrative Assistant
Funding
APRI is most grateful to the Department of Justice, Office of Justice Programs' Violence Against
Women Office for their financial support of the project.

iii

Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

REQUEST FOR PERMISSION TO REPRINT OR ADAPT CONTENTS OF


Understanding Sexual Violence:
Prosecuting Adult Rape and Sexual Assault Cases
The following are the terms governing request for permission to reprint or adapt the following material, in
whole or in part, from the National Judicial Education Programs (hereinafter Publisher) publication,
Understanding Sexual Violence: Prosecuting Adult Rape and Sexual Assault Cases.
If permission is granted, the following shall constitute the terms of the Applicants license being granted by
Publisher:
1.

To submit one (1) copy of the Applicants work to Publisher. Such submission shall include the portion of
the above title that Applicant requests to be included in Applicants work.

2.

To place the following copyright notice in any and all adaptations or reprintings of the above title:
2001 by National Judicial Education Program to Promote Equality for Women and Men in the
Courts/ NOW Legal Defense and Education Fund

3.

To make the following acknowledgement in any and all adaptations or reprintings of the above title:
This material was adapted from Understanding Sexual Violence: Prosecuting Adult Rape and
Sexual Assault Cases developed by the National Judicial Education Program to Promote
Equality for Women and Men in the Courts and co-authored by Lynn Hecht Schafran, Esq.,
Director, Roberta Maria Baldini, Esq. and Claudia Bayliff, Esq., Project Attorneys. The National
Judicial Education Program is a project of NOW Legal Defense and Education Fund. Production
was made possible by a grant from the Department of Justice, Office of Justice Programs,
Violence Against Women Office.

4.

To include the authors names on any adaptation or reprinting of the materials.

5.

Permission being licensed by Publisher, if granted, shall terminate two years after publication of the work.

6.

This permission does not authorize mechanical or electronic reproduction in any form or media, except
transcription into Braille solely for the use of the blind.

7.

This permission covers the world, for publication in the English language. For permission to translate the
above title into a foreign language, the Applicant must submit the translation and the annexed application to
Publisher for acceptance, which shall be within the sound discretion of Publisher.

8.

To facilitate the adaptation of this curriculum to include state statutes and case law, its contents are
available on computer disk from the: National Judicial Education Program, 395 Hudson Street, 5th Floor,
New York, NY 10014, (212) 925-6635, Fax: (212) 226-1066.

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

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grant of permission to reprint or adapt the above title. Applicant must sign and submit the annexed
application to Publisher for acceptance, which shall be within the sound discretion of Publisher. The
annexed application shall be mailed to: National Judicial Education Program, 395 Hudson Street, 5 th Floor,
New York, NY 10014, (212) 925-6635, Fax: (212) 226-1066.

Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

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Understanding Sexual Violence: Prosecuting Adult
Rape and Sexual Assault Cases

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

Date:

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

TABLE OF CONTENTS

Day I:

Introduction to the Curriculum . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Suggested Four-Day Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xviii

Pre-Conference Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xxxii

Welcome/Participant Self-Introductions . . . . . . . . . . . . . . . . . . . . . .

Introduction, Overview of Program & Resources Book and Faculty


Introductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Program Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Resources Book Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2
2
2

Opening Your Case File State v. Michael Cates: Case Evaluation


and Ethical Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Content Overview Case Evaluation . . . . . . . . . . . . . . . . . . . . . .
Content Overview Ethical Considerations . . . . . . . . . . . . . . . . .
Case File Exercise Directions and Worksheet. . . . . . . . . . . . . . .
Ethical Considerations Exercise Directions and Worksheet . . . .

3
3
4
6
7

VICTIMS: WHAT PROSECUTORS NEED TO KNOW


Victim Impact Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Content Overview Victim Impact . . . . . . . . . . . . . . . . . . . . . . . .
Someone You Know Video Synopsis . . . . . . . . . . . . . . . . . . . . .
Someone You Know Discussion and Faculty Cheat Sheet . . . . .

8
8
11
12

The Neurobiology of Trauma: Implications for Rape Victims . . . . . .


Content Overview Neurobiology of Trauma . . . . . . . . . . . . . . .
Lecture Outline, see Visuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13
13
13

Victim Impact and Interviewing: Who Must the Complainant Tell . .


Content Overview Who Must the Complaint Tell . . . . . . . . . .
Who Must the Complainant Tell Exercise Instructions . . . . . . .
Faculty Cheat Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14
14
14
16

Interviews: Working With the Victim to Pull the Case Together . . . . 17


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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

Content Overview Working With the Victim to Pull the Case


Together . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Content Overview Tensions in the Interviewing Process . . . . . .
Caveat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lecture Outline: Key Points for Conducting the Interview . . . . . .

17
18
18
19

Tensions in the Initial Interview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


Content Overview Tensions in the Initial Interview . . . . . . . . . . 20
Tensions in the Initial Interview Exercise Directions and
Worksheet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Enhancing the Prosecutor/Victim Partnership: Building Trust . . . . .
Content Overview Enhancing the Prosecutor/Victim Partnership
Building Trust with Amanda Brown Exercise Directions and
Worksheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Building Trust with Diverse Victims Exercise Directions and
Worksheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Building Trust with Diverse Victims Faculty Cheat Sheet . . . .

25
25

Exercise: Getting the Real Deal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Content Overview Getting the Real Deal . . . . . . . . . . . . . . . . . .
Faculty Only: Rules for Getting the Real Deal Exercise . . . . . . . .
Participants Exercise Directions and Worksheet . . . . . . . . . . . . .
Handout for Participant Playing the Complaining Witness Only . .
The Full Story Handout. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Faculty Cheat Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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CONCLUSION DAY I

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

Day II:
Victim Advocate/Prosecutor Relationship . . . . . . . . . . . . . . . . . . . . . .
Content Overview Victim Advocate/Prosecutor Relationship .
Lecture Outline: Victim Advocate/Prosecutor Relationship . . . . .
Sample Victim Advocate Disclosure Form . . . . . . . . . . . . . . . . . .

37
37
38
39

Trial Preparation and Practice:


Part I: Educating and Supporting the Complainant . . . . . . . . . . . . . . . 40
Content Overview Preparing the Complainant for Trial . . . . . . . 40
Lecture Outline: Preparing the Complainant for Trial . . . . . . . . . . 40
Part II: Thinking About Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Lecture Outline: Prosecutors Trial Preparation . . . . . . . . . . . . . . . 42
Direct Examination of the Complainant: Recreating the Reality of the
Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Content Overview How to Recreate the Crime and the Victims
Feelings for the Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Lecture Outline: Thinking About Direct Examination . . . . . . . . . 43
Introducing the Victim to the Jury . . . . . . . . . . . 44
Recreating the Reality of the Crime . . . . . . . . . . 44
How the Attack Ended . . . . . . . . . . . . . . . . . . . . . 46
What Do Sexual Assault Forensic Examiners Do, and
What Can They Do for You? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Content Overview S.A.F.E.s: Their Role and What They Can
Do For Your Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Forensic Examination Video Synopses . . . . . . . . . . . . . . . . . . . . .
Lecture: Introduction to the Sexual Examiner Role . . . . . . . . . .
How An Expert Can Help You Support the Complainant
and Prove Your Case More Effectively . . . . . . . . . . . . . . . . . . . . . . . . .
Content Overview How to Use an Expert Witness and Prove
Your Case More Effectively . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lecture Outline: How An Expert Can Help You Support the
Complainant and Prove Your Case More Effectively . . . . . . . . .
A Prosecutors Checklist: Using a Psychological Expert in a
Sexual Assault Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tips on Working with a Medical Expert in a Sexual Assault
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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Experts Checklist: Courtroom Testimony in a Sexual Assault
Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State-Specific Law: Rape Shield Law, State-of-Mind/Experts . . . . . . .
Content Overview State-Specific Law . . . . . . . . . . . . . . . . . . . . .
Rape Shield Exercise Directions and Worksheet. . . . . . . . . . . . .
State-of-Mind/Expert Exercise Directions and Worksheet. . . . .

77

How to Keep on Keepin On: Overcoming Vicarious Trauma . . . . . . .


Content Overview How to Keep on Keepin On . . . . . . . . . . . . .
Lecture Outline: The Difference Between Vicarious Trauma and
Burn-Out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rules of the Game: Family Feud . . . . . . . . . . . . . . . . . . . . . . . . .
Survey for Family Feud Game: Handout . . . . . . . . . . . . . . . . . .

89
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CONCLUSION DAY II

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

Day III:
OFFENDERS: WHAT PROSECUTORS NEED TO KNOW
Myths and Realities - Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Content Overview Myths and Realities . . . . . . . . . . . . . . . . . .
Lecture Outline, see Visuals . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Videotape Order Form: The Undetected Rapist . . . . . . . . . . . .

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96
97

Serial Offending and Prior Bad Acts . . . . . . . . . . . . . . . . . . . . . . . . .


Content Overview Serial Offending and Prior Bad Acts . . . .
Lecture Outline, see Visuals . . . . . . . . . . . . . . . . . . . . . . . . . . . .

98
98
98

State-Specific Law Section: Prior Bad Acts . . . . . . . . . . . . . . . . . . . .


Content Overview Prior Bad Acts . . . . . . . . . . . . . . . . . . . . . .
Prior Bad Acts Exercise Directions and Worksheet. . . . . . . . . .

99
99
100

Pleas and Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Content Overview Pleas and Sentencing . . . . . . . . . . . . . . . . .
Lecture Outline, see Visuals . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sentencing Recommendations Exercise Directions and
Worksheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Defendants Sentencing Proposal Exercise Directions and
Worksheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Defendants Sentencing Proposal . . . . . . . . . . . . . . . . . . . . . . .
Faculty Cheat Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

101
101
101

Cross-Examination of a Defendant in a Consent Case. . . . . . . . . . . . .


Content Overview Cross-Examination . . . . . . . . . . . . . . . . . . .
Cross-Examination Exercise Directions and Worksheet. . . . . . .
Faculty Cheat Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

107
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Voir Dire: Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Content Overview Voir Dire . . . . . . . . . . . . . . . . . . . . . . . . . .
Bob and Lisa Video Synopsis . . . . . . . . . . . . . . . . . . . . . . . . .
Faculty Cheat Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lecture Outline: What the Research About Rape Jurors Tells Us

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Voir Dire: Exercises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Content Overview Crafting Your Voir Dire . . . . . . . . . . . . . . .
Lecture Outline: The Critical Link Between Voir Dire and

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

Summation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Voir DireExercise Directions and Worksheet (Overview) . . . . .
Individual Participants Exercise Directions and Worksheet . . . . .
Reporters Worksheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Faculty Cheat Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CONCLUSION DAY III

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Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2001 Legal Momentum

Day IV:
DNA Primer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Content Overview Basic DNA . . . . . . . . . . . . . . . . . . . . . . . .
Lecture Outline, see Visuals . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Drug-Facilitated Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Content Overview Drug-Facilitated Rape . . . . . . . . . . . . . . .
Lecture Outline, see Visuals . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Improving Your Agency: How to Get There . . . . . . . . . . . . . . . . . .


Content Overview Improving Your Agency . . . . . . . . . . . . .
Commitment 1 Worksheet . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commitment 2 Worksheet . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commitment 3 Worksheet . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Closing Remarks, Certificates of Completion & C.L.E. Credit Forms 133


Content Overview: Closing Remarks . . . . . . . . . . . . . . . . . . . . .
133

CONCLUSION OF PROGRAM

Resources Book Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . .


Volume I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Volume II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Table of Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Introduction To The Curriculum


This introductory section offers an overview of the curriculum and guidance to the
program planning committee, program moderator, and members of the faculty.
Instructions for planning, logistics, exercises, and ordering videos used in the program
are provided throughout this Faculty Manual in conjunction with each unit. Detailed
instructions including the substantive content are provided in the description of each unit.

Intended Audiences
This curriculum is designed primarily for prosecutors who handle felony sexual assault
and rape cases. However, the audience should not be limited to those prosecutors. The
information is also relevant for appellate prosecutors and for future sex crimes
prosecutors, as well as those who conduct preliminary hearings or grand jury
presentations, or who handle misdemeanor sexual assault cases. One veteran prosecutor
with twenty years of experience told us that after attending this program he finally
understood how to prosecute an acquaintance rape case. Another, who had been a
prosecutor for only six weeks, said he was drinking in every word.

Curriculum Perspective
This curriculum focuses on nonstranger rape of adult female victims. It presents the
latest social science research about victims, offenders and jury decisionmaking, as well as
how to use expert witnesses, medical research, DNA, and information about DrugFacilitated Rape.
This curriculum follows educational models based on research about effective adult
learning techniques. Adult learners need to:

relate new information to what they already know;


reflect on the new information; and
apply the new information to real problems they encounter in their work.

This curriculum seeks to help prosecutors develop further their abilities related to
decision making, analysis, and awareness of their own values 1 in rape cases.

Charles Claxton, Curriculum Development in Judicial Education: A Development Model, paper presented
at the Advanced Leadership Training Program, Leadership in Judicial Education, Washington D.C. (August
26-29, 1993) at 4.

Case File: State v. Michael Cates


The curriculum uses a case file, State v. Michael Cates to explore the various issues
presented in rape and sexual assault prosecutions. Print the case file before reading
through the Faculty Manual. The reader should refer to the case file while
becoming familiar with the curriculum. If you are reading this in hard copy, the
case file is in Appendix 2 of the Faculty Manual. The case file is also available in PDF
format on the VAWO website, at http\\www.vaw.umn.edu\FinalDocuments\
usvpros.asp. The case file is used throughout the four-day training.
Each unit of the curriculum builds on the previous units lessons. As participants work
through the issues in the case, they gain a deeper appreciation of it and come to
understand that the case is stronger than they may have first realized.
The major themes are repeated and reinforced as the curriculum moves from unit to unit.
It is important for the faculty to refer to those lessons and focus on the links between
various topics presented. For example: In this unit, we will discuss the importance of
re-creating the reality of the crime during the direct examination of the victim. Use what
you have learned from the victim impact expert and from the lecture on expert witnesses
in thinking about how to craft the direct examination questions.
Repeating and reinforcing these major themes requires that each faculty member be
knowledgeable about the curriculum as a whole and be able to relate his or her unit to
what came before and what will come after. This is NOT a curriculum in which
individual experts can drop in to present their set pieces and leave.

Goals and Objectives


After completing this curriculum and the exercises included, participants will be able to:
1. Identify common societal myths and biases that may impugn the integrity of the
trial process in rape cases.
2. Understand how these rape myths affect the perceived credibility of the victim,
charging decisions, and juror attitudes.
3. Craft voir dire questions designed to elicit misconceptions about rape that could
undermine the fairness of juror deliberations.
4. Identify the short and long-term psychological and physiological effects of rape
on victims.
5. Understand the impact of the criminal justice system on adult victims of sexual
assault.

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6. Minimize victim retraumatization throughout the pre-indictment, trial and


sentencing phases.
7. Understand the detrimental effect of delay on the victim in these cases.
8. Effectively interview a complainant to elicit details of the crime and minimize
retraumatization.
9. Craft the complainants direct examination to re-create the reality of the crime.
10. Be sensitive to the wide variety of possible cultural differences between the
prosecutor and the complainant, the prosecutor and the jury, and the complainant
and the jury in order to develop strategies to bridge these gaps.
11. Introduce and use expert testimony, understanding the limitations of that
testimony.
12. Understand the importance of expert medical testimony even in a case where the
victim did not appear to have extrinsic physical injuries.
13. Understand what a Sexual Assault Forensic Examiner does.
14. Understand the nonstranger rapist who does not fit the stereotypical view of who
rapists are and what they look like.
15. Understand how to investigate and use a defendants prior bad acts in a consent
case.
16. Understand key components and limitations of effective sex offender treatment.
17. Apply the information learned in this curriculum when making decisions
regarding charging the defendant, plea offers, and sentencing recommendations.
18. Promote the sensitive and informed handling of rape cases.
19. Work effectively with victim advocates.
20. Recognize, deal with and prevent vicarious trauma.
21. Understand DNA evidence and how to make it comprehensible to a jury.
22. Understand how to investigate and prosecute drug-facilitated rapes.
23. Apply the lessons learned during this program in their own offices and
communities.

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Curriculum Format
This curriculum comprises three parts:
Part I.
Part II.
Part III.

Faculty Manual
Participants Binder
Resources Book, Volumes I and II

Part I, the Faculty Manual, explains in detail how to present the curriculum and the
substantive content to be communicated. It is essential reading for everyone involved in
planning and teaching this curriculum, including outside experts. It should be used in
training prosecutor presenters and non-prosecutor faculty.
Part II, the Participants Binder, contains all of the materials participants will need during
the program: the case study, exercise directions and worksheets, report back forms,
lecture outlines, checklists, hardcopy of the experts slides for easy reference and
evaluation instruments.
Part III, the Resources Book, Volumes I and II, contains reports, studies, articles, and
excerpts that provide background on the substantive content of the curriculum and permit
the reader to consider these subjects in greater depth than may be possible during the
program.
The contents of Parts II and III, the Participants Binder and the Resources Book,
Volumes I and II, should be reproduced and provided to participants at the program.

Planning the Program


Prosecutors and prosecutor coordinators wishing to present the full curriculum need to
plan carefully. The initial steps for planning this program are similar to those for any
prosecutor education program.
Planning Committee
The first step is to convene a planning committee (the committee). If the state prosecutor
coordinator is not the convenor, s/he should be included as a member of the committee.
The other members should be prosecutors who are experienced trainers, as well as
prosecutors who are knowledgeable about the subject and have tried sexual assault cases.
Beginning the Planning Process
The committee should read the Faculty Manual and Participants Binder, view all the
videotapes used during the program, and be familiar with the Resources Book, Volumes I
and II. One objective of the committee should be to plan the program in light of local
needs. The committee should consider such issues as:

xxxiv

the nature of the audience for the program, including the prosecutors level of
experience;
the key objectives of the program;
adapting the curriculum to reflect local statutes and case law;
the anticipated number of participants; and
the time available, i.e., whether the program will be presented in one session or over a
period of time.

Curriculum Faculty
The choice of program faculty is critical. The curriculum requires faculty with a wide
variety of expertise, as described below. In choosing faculty, select people who will agree
to be trained in presenting this curriculum. As stated earlier, this is not a curriculum in
which individual faculty can drop in to present their set pieces and leave. Each faculty
members specific responsibilities are detailed on pages xiv-xvi.
Program Moderator
The program moderator acts as the Master of Ceremonies for the entire four-day
program. The program moderator has primary responsibility for opening and closing the
program and each unit, keeping the program running on time, referring participants to the
relevant sections of the Participants Binder and Resources Book, distributing and
collecting daily evaluations and distributing Certificates of Completion and Continuing
Legal Education Certificates. The program moderator must be willing and able to
challenge his or her colleagues in a diplomatic and non-judgmental way, in order to keep
the discussions focused on the key issues raised by the curriculum.
The program moderator can also serve as a faculty member and teach one or more of the
units.
Prosecutor Presenters and Expert Faculty
The curriculum requires as faculty:

prosecutors with extensive experience with adult sexual assault cases;


a victim impact expert with extensive experience with adult sexual assault
victims;
a sex offender expert with extensive experience with sex offenders who victimize
adults;
a victim advocate with extensive experience with adult sexual assault cases;
a Sexual Assault Forensic Examiner;
an individual with expertise in cultural competence, who may be one of the
experts listed above;
a DNA expert; and
an expert on drug-facilitated rape.
xxxv

With respect to the units on DNA and drug-facilitated rape, the Laboratory Units of the
Federal Bureau of Investigation provide skilled trainers from the Bureaus DNA and
Forensic Toxicology Laboratories. Contact Dr. Joseph A. Di Zinno, Section Chief,
Scientific Analysis Section, F.B.I. Laboratory, directly to arrange for presenters. His
phone number is 202-324-4416. Call as far in advance of your program as possible.
Each faculty member must be both an expert in his or her field and a skilled trainer. The
committee should involve these experts in the planning process as soon as they are
identified and work with them throughout, so that they are aware of what is expected of
them and what their role is in the context of the entire curriculum.
Expert Faculty Presenters
When non-prosecutor faculty are invited to speak, special issues arise. In order for their
presentations to be instructive and acceptable to prosecutors, these presenters may need
assistance in developing their materials and approach for a prosecution audience. The
non-prosecutor presenter should understand the prosecutors role and legal and ethical
obligations. Prosecutors experienced in prosecutor education should work with these
experts to prepare their presentations. They should act as translators who draw out the
implications of the medical and social science for the prosecutors. The expert must link
the non-legal information to the prosecutors responsibilities in charging and prosecuting
a case and explain how it can be applied. It is important that experts not speak in jargon
or in abstractions. For example, the victim impact expert should not simply say that rape
victims often suffer denial after the assault, but rather explain what denial means. The
expert should explain how denial manifests itself and what that means for the trial
process. For instance, a victim may not always cooperate in the trial process; she may
miss appointments with the prosecutor or arrive late for court dates.
The prosecutor educators can confer credibility on the non-prosecutor presenters by
introducing them in a way that stresses their expertise and legitimates the importance and
relevance of the material in assisting the prosecutor to prosecute these cases.
This group of experts, referred to collectively below as expert faculty presenters are the
content experts on particular subjects. They have responsibility for presenting one or
more units. These faculty presenters may also serve as small-group facilitators whenever
possible.
Small-Group Facilitators
The committee should select small-group facilitators, one for every six to eight
prosecutors. The committee may wish to use the faculty in this role. They will already
know the curriculum, therefore minimizing the necessity for additional training. This also
avoids the problem of the faculty sitting together and talking during the program, which
is disruptive and creates an unpleasant atmosphere. Again, be mindful that small-group
facilitators must be knowledgeable about the subject, the curriculum, and be skilled

xxxvi

facilitators. The committee should strive to incorporate balance in faculty selection with
respect to level of experience, sex, ethnicity, race, geography and jurisdictions.
Conduct faculty training on small-group facilitation whether you use the faculty
presenters for this task or choose others. Facilitators must be completely familiar with the
exercises in order to properly direct their groups.

Faculty Duties
Program Moderator
The program moderator is key. The prosecutor selected for that position should be
knowledgeable about sexual assault cases, familiar with the curriculum, and a skilled
facilitator.
Program Moderators Duties
Before the program, the program moderator should:

become completely familiar with the Faculty Manual, including the slides provided at
the end of the Faculty Manual in the Appendices;
review the Participants Binder and the Resources Book;
answer the questions in the Participants Binder to become familiar with the
exercises;
watch the videos;
review the relevant local statutes, rules, and leading cases;
prepare opening and closing remarks;
prepare faculty introductions; and
participate in faculty training.

During the program the program moderator is responsible for:

welcoming participants;
introducing the program;
explaining the Resources Book (see below);
making certain the group adheres to the agenda;
distributing each days evaluation and ensuring that it is completed by days end;
introducing each unit of the program;
introducing the faculty;
making sure the discussion stays focused;
managing the participants in such a way that no one dominates the discussions and
that all of the prosecutors are encouraged to participate;
closing each unit and suggesting future uses for the Resources Book;
having participants complete their surveys, postcards, and evaluations;
collecting the surveys, postcards, and evaluations;
closing the program; and
distributing Certificates of Completion and CLE Credit Forms.
xxxvii

Explaining the Resources Book:


At the start of each unit, the program moderator should write on a flip chart or overhead
slide the relevant volume(s) and tab(s) references from the Resources Book. While
introducing each unit of the program, refer to relevant materials in the Resources Book
by indicating the volume and tabs where they can be located. Repeat this at the end of
each unit.
Prosecutor Presenters and Experts Duties
Before the program the expert faculty presenters should:

become completely familiar with the Faculty Manual unit(s) which the expert will be
presenting and prepare his or her presentation, lecture and slides according to the
instructions in the manual;
review the complete Faculty Manual, including the slides provided at the end of the
Faculty Manual in the Appendices, to understand how his or her unit(s) fit into the
entire curriculum;
review the Participants Binder and segments of the Resources Book relevant to the
expert faculty members unit;
answer the questions in the Participants Binder to become familiar with the
exercises;
watch the videos relevant to their units;
review the relevant local statutes, rules and leading cases;
participate in faculty training;

During the program the expert faculty presenters are responsible for:

facilitating discussion, as appropriate, during the units they teach;


ensuring that certain participants do not dominate the discussion;
responding to questions as they arise; and
refering to the Resources Book whenever relevant and reminding participants to use it
for future cases.

Small-Group Facilitators Duties


Prior to the faculty training meeting the small-group facilitators should:

become completely familiar with the Faculty Manual, including the slides
provided at the end of the Faculty Manual in the Appendices;
review the Participants Binder and Resources Book;
answer the questions in the Participants Binder to familiarize themselves with the
exercises;
watch the videos; and
review the relevant local statutes, rules and leading cases.

xxxviii

During the program, the small-group facilitators lead each of the small-group exercises
included in the curriculum. For each exercise, the facilitator should:

introduce him or herself and the other participants in the small group (for the first
exercise only);
give directions for the exercise;
assign a reporter as per directions in the exercises;
appoint one group member to keep track of the time for each exercise;
facilitate discussion of the exercise;
emphasize the interactive quality of the training so participants will be actively
engaged and encouraged to participate in every aspect of the program;
keep the group focused on the topic of the exercise;
encourage different viewpoints to be discussed before the group decides on a
reponse;
elicit responses from the quieter members of the group; and
ensure that certain members of the group do not dominate the discussion.

Schedule Faculty Workshop


A critical element in the planning process is faculty training. To ensure that each faculty
member is thoroughly familiar with the curriculum generally and the sections he or she
will teach, it is essential to conduct one or more faculty workshops. It is important for the
faculty to meet in-person to work out the presentations, discuss supplementing the
curriculum with local legal material, and arrange the necessary program logistics. Local
experts may have additional materials or suggestions to incorporate. During this
workshop, the faculty will act as both presenter and audience. This ensures that the
presenters understand what they are required to present, the flow of the program, and that
they are familiar with the overall curriculum.
The committee should set a faculty workshop agenda. This agenda should reflect the
order of the overall curriculum agenda. This will show the full faculty how the various
components of the program build upon each other. Allow two days for the faculty
workshop.
Send the Faculty Manual, Participants Binder, Resources Book, Volumes I and II, and
faculty workshop agenda to faculty well in advance of the workshop.
The prosecutor coordinator or whoever is planning the program should provide the
necessary audio-visual equipment to show the slides, videotapes or overhead slides for
each unit presented. This will give the faculty a clear sense of how these materials are
incorporated into the program. Arrange to have lunch delivered to the meeting to save
time.

xxxix

Curriculum Length
Rape and sexual assault are subjects to which a great deal of time could and should be
devoted. This curriculum requires four days to present in its entirety. Although the
program is long, participants in the pilot programs reported that each unit was important
and recommended that nothing be cut. Therefore, we encourage you to plan your
program with this in mind.
If it is not possible to devote the full four days to the curriculum in one session, it can
also be presented as a series of two or four parts. Keep in mind that each unit builds on
what was covered in the prior units and these critical lessons will be lost if too much time
elapses between sessions. Therefore, present the sessions in close succession.

Curriculum Program Agenda


The suggested agenda for the full four-day program is on the following pages.

xl

Understanding Sexual Violence: Prosecuting Adult Rape


and Sexual Assault Cases
SUGGESTED FOUR-DAY AGENDA
Day I:
8:00-8:30 a.m.

Registration

8:30-9:00 a.m.

Welcome/Participant Self-Introductions

9:00-9:15 a.m.

Introduction, Overview of Program & Resources Book


and Faculty Introductions

9:15-10:15 a.m.

Opening Your Case File State v. Michael Cates:


Case Evaluation and Ethical Considerations

10:15-10:30 a.m.

Break

VICTIMS: WHAT PROSECUTORS NEED TO KNOW

10:30-12:00 p.m.

Victim Impact Overview

12:00-1:00 p.m.

Lunch

1:00-2:00 p.m.

The Neurobiology of Trauma: Implications for Rape Victims

2:00-2:15 p.m.

Victim Impact and Interviewing: Who Must the Complainant


Tell

2:15-3:30 p.m.

Interviews: Working With the Victim to Pull the Case


Together

3:30-3:45 p.m.

Break

xli

3:45-4:45 p.m.

Enhancing the Prosecutor/Victim Partnership: Building Trust

4:45-4:50 p.m.

Stretch Break

4:50-5:35 p.m.

Exercise: Getting the Real Deal

CONCLUSION DAY I

xlii

Day II:
8:30-9:00 a.m.

Victim Advocate/Prosecutor Relationship

9:00-9:30 a.m.

Trial Preparation and Practice:


Part I: Educating and Supporting the Complainant
Part II: Thinking About Trial

9:30-9:45 a.m.

Break

9:45-10:45 a.m.

Direct Examination of the Complainant:


Recreating the Reality of the Crime

10:45-10:55 a.m.

Break

10:55-12:40 p.m.

What Do Sexual Assault Forensic Examiners Do, and


What Can They Do for You?

12:40-1:40 p.m.

Lunch

1:40-2:45 p.m.

How An Expert Can Help You Support the Complainant


and Prove Your Case More Effectively

2:45-3:00 p.m.

Break

3:00-4:00 p.m.

State-Specific Law: Rape Shield Law, State-of-Mind/Experts

4:00-4:15 p.m.

Break

4:15-5:15 p.m.

How to Keep on Keepin On: Overcoming Vicarious Trauma

CONCLUSION DAY II

xliii

Day III:
OFFENDERS: WHAT PROSECUTORS NEED TO KNOW
8:30-9:30 a.m.

Myths and Realities - Overview

9:30-9:35 a.m.

Stretch Break

9:35-10:35 a.m.

Serial Offending and Prior Bad Acts

10:35-10:45 a.m.

Break

10:45-11:15 a.m.

State-Specific Law Section: Prior Bad Acts

11:15-11:20 a.m.

Stretch Break

11:20-12:30 p.m.

Pleas and Sentencing

12:30-1:30 p.m.

Lunch

1:30-2:30 p.m.

Cross-Examination of a Defendant in a Consent Case

2:30-2:35 p.m.

Stretch Break

2:35-3:35 p.m.

Voir Dire: Overview

3:35-3:45 p.m.

Break

3:45-4:45 p.m.

Voir Dire: Exercises

CONCLUSION DAY III

xliv

Day IV:
8:30-10:00 a.m.

DNA Primer

10:00-10:15 a.m.

Break

10:15-12:15 p.m.

Drug-Facilitated Rape

12:15-1:15 p.m.

Lunch

1:15-2:15 p.m.

Improving Your Agency: How to Get There

2:15-2:30 p.m.

Closing Remarks, Certificates of Completion & C.L.E. Credit


Forms

CONCLUSION OF PROGRAM

xlv

The Agenda
The suggested agenda on the previous pages includes all of the units in the order in which
they should be presented during the full four-day program. If four days is more time than
can be devoted in one session, the committee can plan to present the complete program in
two, two-day sessions or four daylong sessions. However, as noted above, it is important
to present these sessions close in time to each other to benefit from the fact that each unit
of the curriculum builds on those that preceeded it.
Breaks and Lunches
The suggested four-day agenda contained in this Faculty Manual recommends short
breaks and one-hour lunch breaks for each training day. The committee should be
mindful of your audiences needs and schedule breaks and lunches with which the
prosecutors in your jurisdiction are comfortable. Adult learning principles recommend
that adult learners need to break at least every 90 minutes.
State Specific Materials
This curriculum is presented as a generic model to be adapted to reflect each states
statutes and case law. State statutes on rape and sexual assault may differ widely. Some
do not use the word rape. Some require consent freely and voluntarily given. One
statute provides a lesser penalty for the rapist of a social companion. Some still
maintain the martial rape exemption. Your state statutes and case law will affect many
issues discussed in this curriculum. The curriculum includes hypotheticals. It may be
necessary to alter these in order to be relevant in your state and give participants the
opportunity to apply your state law. The exercises should be useful in training your
prosecutors to apply your state law to an issue that may be presented in a local case. You
may want to obtain rape statistics for your state, as well as information about local
resources for rape victims, victim rights legislation and sex offender treatment options.
Locate local experts in these fields to participate in your program and present each unit.

Visual Materials
Research has shown that adult learning is more effective and is retained for a longer
period when the information presented is conveyed both visually and orally. Therefore,
we urge faculty to present information through slides or overheads and videotapes, as
well as by lecture and discussion.
Slides
Almost every unit of the curriculum includes slides related to the expert presentations or
the exercises. These slides are provided in the Appendices at the back of this Faculty
Manual. In each unit of the curriculum, the faculty is referred to the Appendix which
contains the slides for that unit. The committee can reproduce the slides in either Power
Point format, for those who have access to Power Point on their computers and an LCD

xlvi

projector, or as overhead slides on acetate transparencies. In either case, the slides can
also be printed in notebook format, three to a page, to be placed in the Participants
Binders. These slides can be accessed on the VAWO website at:
http:\\www.vaw.umn.edu\FinalDocuments\usvpros.asp
The website contains all of the slides used in the curriculum.
Videotapes
The curriculum uses several videotape presentations:

Someone You Know;


State of Art Forensic Examination of the Adult Sexual Assault Victim;
Sexual Assault Care: Sexual Assault the Health Care Response;
Celebrate Living;
Bob and Lisa Mock Jury Deliberation; and
The Undetected Rapist.

If it is not possible to find a prosecutor from your jurisdiction or an F.B.I. Forensic


Toxicologist able to teach the unit on drug-facilitated rape, substitute the videotape The
Prosecution of Rohypnol and GHB Related Sexual Assaults for a live presentation.
This Faculty Manual provides a description of each videotape and how to use it in the
unit where it is to be shown. Ordering information is also provided on pages xxv and
xxvi. Be mindful of the time it will take to order and receive the tapes. You will want
them in your possession well before the planning committee meeting.
These videos are important because they visually communicate concepts that cannot be
conveyed in the abstract. For example, State of Art Forensic Examination of the Adult
Sexual Assault Victim graphically presents a sexual assault examination. The videotape
will enable prosecutors to understand the medical procedures a rape victim must endure,
and be able to describe this procedure to the jury. It can also help prosecutors to
understand aspects of a sexual assault examination that a defense attorney might
challenge during the medical witness cross-examination.

xlvii

Videotape Ordering Information


Someone You Know, contact:
The Phoenix Learning Group, Inc.
2349 Chaffee Drive
St. Louis, MO 63146
Phone: (314) 569-0211
Fax: (314) 569-2834
E-mail: phoenix@world.att
Cost: $125.00
State of Art Forensic Examination of the Adult Sexual Assault Victim, contact:
Dr. Randall L. Brown, Medical Director
STOP Rape Crisis Center
District Attorneys Office
233 St. Ferdinand Street
Baton Rouge, LA 70802
Phone: (225) 389-3456
Fax: (225) 389-5685
Email: jwood@ebrda.org
No Cost
Sexual Assault Care: Sexual Assault the Health Care Response, contact:
Institute of Legal Medicine, University of Bern
Buhlstrasse, 20,
CH-3012 Bern
SWITZERLAND
Phone: (41)(31) 631-8412
Fax: (41)(31) 631-3833
E-mail: dna@irm.unibe.ch
Request the medical version #ISBN-3-95-21547-0-9.
Cost: approximately $90.00 US
Celebrate Living, a 4-minute motivational video, contact:
United Way of America
701 N. Fairfax Street
Alexandria, VA. 22314-2045
Phone: (703) 836-7100
Fax: (703) 683-7840
Web site: www.unitedway.org
Cost: $15.00

xlviii

The Undetected Rapist, contact:


National Judicial Education Program
395 Hudson Street, 5th Floor
New York, NY 10014
Phone: (212) 925-6635
Fax: (212) 226-1066
E-mail: njep@nowldef.org
Cost: $15.00
Bob and Lisa Mock Jury Deliberation, contact:
Stephen J. Paterson
President
Jury Sciences, LLC
609 Deep Valley Drive, Suite 200
Rolling Hills Estates, CA 90274
Phone: (310) 544-8773
Fax: (310) 544-8794
E-mail: sjp@vindim.com
Cost: $50.00
The Prosecution of Rohypnol and GHB Related Sexual Assaults, contact:
Tamara Kitchen
Administrative Assistant
American Prosecutors Research Institute
Violence Against Women Program
99 Canal Center Plaza
Alexandria VA 22314
Phone: (703) 519-1659
Fax: (703) 836-3195
E-mail: tamara.kitchen@ndaa-apri.org
Cost: $30.00 (video and manual)

xlix

Program Logistics
The logistics involved in presenting Understanding Sexual Violence: Prosecuting Adult
Rape and Sexual Assault Cases depend on the number of days chosen for the program,
the number of participants, the size of the room and the number of faculty, facilitators
and other presenters. This section contains suggestions about the program logistics
which can be tailored depending on the type of program you plan to present.
Group Size
The National Judicial Education Program has presented this four-day program to groups
of approximately 25 to 30 prosecutors. The prosecutors were divided into small groups
of six to eight, with a trained faculty member assigned to each group to facilitate the
small-group discussions and exercises.
If the planning committee decides to present the program to a larger group, we strongly
recommend training additional prosecutors to act as small-group facilitators.
Room Size and Room Set-Up
The curriculum uses many slides and videotapes. Although copies of all of the slides
should be reproduced for the Participants Binder, it is important that participants do not
need to strain to see the visuals. The room should be small enough so that all participants
can easily see the slide screen and television monitor. You may need more than one
monitor to provide a good view for all participants. The room should also be large
enough to allow all participants space to open their Participants Binders on their tables,
allowing them to read the questions posed for each exercise and take notes.
Table Set-Up
The room should be set up so that participants are sitting at round tables. Seat
participants so that they can see the presenter without having to turn their chairs. When
the National Judicial Education Program presents the curriculum, we use large round
tables and seat participants in a semi-circle facing forward. This gives them room to
spread out their materials and they do not have to turn to see the slide screen or television
monitor. The participants at each table then become the small group for the discussions.
A small-group facilitator is assigned to each table.
Lighting
Participants need to be able to see the slide screen and television monitors without any
glare. They also need to be able to see the program moderator and presenters. If lights
are dimmed to enable participants to see the slides and videos, arrange for some spot
lighting, or turn the lights back up at the end of each unit, so that the moderator or other
presenters are not standing in the dark.

Other Necessary Materials


You will need to have one postage-paid postcard for each participant. The postcards will
be distributed on Day IV, during the Improving Your Agency: How to Get There
segment of the program.
Audio-Visual and Other Equipment Requirements
You will need a variety of audio-visual equipment to present this curriculum. The
equipment needed depends on the room size, the number of participants and whether you
select a Power Point or overhead format. Following are the basic requirements, which can
be tailored to meet the needs of your particular program:

Television Monitors and VHS Video Player: At least one television monitor,
preferably the largest one available, and a VHS video player are required to show
the videos. We recommend that you use two television monitors, if possible, to
make it easier for participants to view the screen.

Slide screen: Whether you select Power Point slides or overheads you will need a
screen on which to show them. Place the screen and projector far enough away
from each other to avoid image distortion.

LCD Projector: If you select the Power Point format you will need an LCD
projector, which works with a computer to display the Power Point slides.

Overhead Projector: If you select the overhead format you will need an
overhead projector to show the slides. Remember that the overheads must be
printed on acetate transparencies.

Podium and Speakers Microphone: The program moderator should have a


podium and a microphone. A hand-held microphone is awkward for the
moderator to use, so we suggest that you use either a lapel microphone or one
attached to the podium.

Faculty Lapel Microphones: A lapel microphone is recommended for faculty so


that they are not tied to the podium.

Head Table with Microphones: If you are using a panel of presenters, we


recommend that you set up a head table with separate microphones, if possible.

Other Microphones: Depending on the size of the group, you may want to have
a few hand-held wireless microphones to use when participants are speaking so
that everyone can hear the comments made.

Flip Charts, White Board or Overhead Projector: Some presenters like to


record comments or suggestions on a flip chart, a white board or an overhead
li

transparency. If your planning committee decides to use any of these visual aids,
be sure you have an adequate supply of non-toxic pens as well.

Terminology
The curriculum focuses on adult female victims because they constitute the majority of
rape victims. Therefore, victims, complaining witnesses, and complainants are referred to
as she and defendants as he. There are references to male victims in the forensic
examination videotape and the Resources Book.
For ease of reference, the terms victim, complaining witness, and complainant are used
interchangeably.

Sensitivity to the Subject Matter


Rape is a highly charged subject. This is particularly true of nonstranger rape. All faculty
should be prepared for the possibility of intense, emotional and possibly angry responses
from participants, or even a hostile refusal to participate at all. It is therefore particularly
important to direct non-prosecutor faculty to avoid being personal or confrontational with
participants.
Given the high incidence of sex crimes against children and adults, it is likely that some
participants or members of their families have been victims of sexual abuse or assault.
This program may be difficult for them. It is of utmost importance that no experience of
sexual abuse be minimized or trivialized.
Be careful about permitting questions about the personal experiences of prosecutors in
the audience. Done carefully, however, this can be a powerful teaching tool. For example,
a criminal law professor at the University of Kentucky begins teaching about rape by
asking each student to state what he or she does on a daily basis to protect himself or
herself from rape. She begins with the men and gets no response apart from silence and
nervous laughter. When she asks the women, every one of them has something to say.
The men are always amazed to learn that fear of rape is a daily concern for their female
colleagues. If you use such a technique, it should be no more personal than this.
No faculty member should make jokes about the subject matter. These jokes may be
intended as a well-meant effort to diffuse nervous tension in the room, but they work to
trivialize the issue.

Concluding The Program


Closing Remarks
In addition to completing each unit with a formal closing, at the end of the program the
program moderator should take a few minutes to make closing remarks.

lii

At the end of these remarks the moderator should ask participants to complete and submit
their evaluations, as described below. Allow at least five minutes writing time. Once all
evaluations are in, the moderator presents each participant with a certificate of
completion and, if the program has been approved in advance by your states bar
association, a Continuing Legal Education (C.L.E.) credit form.

Evaluation Instrument
For the pilot programs of this curriculum, the National Judicial Education Program
developed a highly detailed evaluation instrument. The aim is to evaluate each units
faculty presentations and written materials. We have found it a good practice to provide
the evaluation for each days program on that morning and ask participants to fill it in at
the end of each unit. Be sure to allow time at the end of the day for participants to
complete the days evaluation and turn it in. This allows participants to make their
comments immediately. The complete evaluation instrument is included at Appendix 1 of
this Faculty Manual.

Continuing Legal Education


Check with your states bar association about how your organization can become an
approved C.L.E. provider. Allow at least eight weeks from the start of the C.L.E.
provider application process to the time you schedule this program.

Certificate of Completion
After all of the evaluations are turned in, the program moderator presents each participant
with a Certificate of Completion, included at Appendix 21 of this Faculty Manual.

Feedback About Your Program


The National Judicial Education Program is interested in receiving ongoing feedback
about this curriculum and would appreciate it if prosecutor coordinators would send
evaluation summaries and other feedback to:
Lynn Hecht Schafran, Esq.
Director
National Judicial Education Program
395 Hudson Street, 5th Floor
New York, NY 10014
(212) 925-6635
(212) 226-1066 FAX
njep@nowldef.org
www.njep.org
This will enable us to learn more about how the curriculum is received and guide us as
we develop additional material for prosecutors and others in the legal system.
liii

Pre-Conference Assignments
Overview: Participants are asked to think about the questions below prior to attending the
conference. Their answers will be elicited throughout the program.
1. What was the best voir dire question you ever asked or heard about in a
nonstranger rape case?
2. What was the most effective prosecution strategy you ever used or heard about in
a nonstranger rape case?
3. What was the most effective defense tactic you have encountered or heard about
in a nonstranger rape case?
4. What obligations must you fulfill under your states victims rights legislation?
5. Prosecutors and complainants are often from different backgroundswhat
strategies have you used to bridge the gaps?

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UNDERSTANDING SEXUAL VIOLENCE:


PROSECUTING ADULT RAPE AND SEXUAL
ASSAULT CASES

FACULTY MANUAL
PROGRAM CONTENT

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
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UNDERSTANDING SEXUAL VIOLENCE:


PROSECUTING ADULT RAPE AND SEXUAL ASSAULT CASES

FACULTY MANUAL
This part of the Faculty Manual provides detailed instructions for each unit of the
curriculum, including format, content, visuals, exercises and worksheets.

REGISTRATION
Staff Needed:

Administrative Support Personnel to register participants

Time Allotted:

Day I: 8:00 to 8:30 a.m.


30 minutes

Overview:
Distribute the Family Feud Survey on page 95 to participants. The data from this
survey will be used in the unit titled How to Keep on Keepin On at the end of Day II.

WELCOME/PARTICIPANTS SELF-INTRODUCTIONS
Faculty Needed:

Program Moderator

Time Allotted:

Day I: 8:30 a.m. to 9:00 a.m.


30 minutes

Visuals for Unit:

Slide is in Appendix 3, Welcome.

Special Instructions for the Faculty:

Ask participants to briefly state:


o their names,

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National Judicial Education Program, Legal Momentum
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o
o
o
o

agencies,
type of jurisdiction (e.g., rural, urban),
whether the agency is a specialized unit or handles a variety of cases, and
the number of sex crimes cases they have tried.

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INTRODUCTION, OVERVIEW OF PROGRAM & RESOURCES BOOK


AND FACULTY INTRODUCTIONS
Faculty Needed:

Program Moderator

Time Allotted:

Day I: 9:00 to 9:15 a.m.


15 minutes

Special Instructions for the Faculty:

Ask participants to complete the survey distributed at registration and return it to


the program moderator;
Present the program overview below;
Present the Resources Book overview below;
Introduce prosecutor presenter for opening exercise.

Program Overview:
Understanding Sexual Violence: Prosecuting Adult Rape and Sexual Assault Cases is an
intensive four-day program. The curriculum explores the complex issues arising from a
rape case. This curriculum is NOT a typical trial advocacy course. It explores victim
impact, current social science research, the latest evidence-collection techniques, medical
research, and information about sex offenders to inform and assist in the prosecution of
rape and sexual assault cases.
The participants are presented with a case file on day one and, over the course of the
curriculum, work through the issues, myths, and stereotypes that it presents. Each unit
builds on the information taught in the prior unit. In learning about the complaining
witness, the incident, and the issues surrounding the attack, the participants build their
case file.
This curriculum uses a combination of teaching techniques: lectures; video presentations;
interactive exercises; and large and small group discussions.
Resources Book Overview:
Understanding Sexual Violence: Prosecuting Adult Rape and Sexual Assault Cases
includes a Resources Book, Volumes I and II, of studies, articles, checklists, transcripts,
websites, and article abstracts which provide the reader with in-depth information about
the issues explored during the four-day program. This Resources Book is a valuable
asset for any prosecutors office. If the reader is presented with a difficult issue just
before a trial or at a pre-trial hearing, the Resources Book may provide a number of

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relevant articles on the issue. During each unit, we will direct you to the relevant
materials in your Resources Book.

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OPENING YOUR CASE FILE STATE V. MICHAEL CATES:


CASE EVALUATION AND ETHICAL CONSIDERATIONS
Faculty Needed:

Prosecutor Presenter(s)

Format for Unit:

Small Group Exercise

Time Allotted:

Day I: 9:15 to 10:15 a.m.


1 hour

Content Overview Case Evaluation:


This exercise is intended to simulate an ADAs first encounter with and assessment of a
case. The goal is to generate a wide-ranging discussion about the special challenges that
rape myths and the use of alcohol pose for prosecuting these cases, and the importance of
interdisciplinary cooperation and building bridges to the other professionals (e.g., police,
victim advocates, Sexual Assault Forensic Examiners) who help make a case. The case
study introduced here, State v. Michael Cates, will be used and developed throughout the
program.
This Faculty Manual Contains:

State v. Michael Cates case file. This is in Appendix 2 as a PDF file.


State v. Michael Cates Case File Exercise Directions and Worksheet, page 6.

Visuals for Unit:

Slides are in Appendix 4, State v. Michael Cates: Case Evaluation and Ethical
Considerations.

The Participants Binder Contains:

The case file State v. Michael Cates (Detectives Report and District Attorney
write up), at Tab 3, page 3-2.
Opening Your Case File Worksheet, at Tab 3, page 3-15.

Special Instructions for the Faculty:

Opening Your Case File Strengths and Weaknesses


o Directions for Exercise: Prosecutor presenter divides the room in half and
assigns one half to argue the strengths of the case and the other half to argue
the weaknesses as these issues would be evaluated in assessing whether to file

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charges. Allow 10 minutes for participants to discuss the strengths/weaknesses


at their tables.
o Query the two sides: Based on what you know now, what are the
strengths/weaknesses of this case? What rape myths will you have to counter?
Who will help you make your case? Allow 20 minutes for the report back.
o Key Point: There are no good or bad facts; there are only facts. Some help
your case, others present challenges to overcome. Prosecutors must learn to
deal with all of the facts of a case.

Subjects for Discussion:


o Not rape if they knew each other
o She voluntarily went with him to dorm room so not rape
o He employed a ruse to get her to his room
o Complainant invited sexual activity by sitting on defendants bed and kissing
him
o She was drinking with him so not rape
o She claims struggle and he is significantly bigger than she is
o Delayed report so not rape
[Police report shows date of occurrence as two months prior to report.]
o
o

No physical injuries so not rape


How will you make your case?

o What do you expect the defense to argue?


o Who will help you make your case?
police
investigator
victim advocate
Sexual Assault Forensic Examiner
expert witnesspsychology
who else?
o If the group views the case through a victim-blaming lens, the prosecutor
presenter must point this out to the group. The prosecutor presenter should
shift the focus onto the defendants conduct. Over the course of the four-day
program, reinforce the importance of examining the defendants conduct and
placing the blame on the defendant.
Content Overview Ethical Considerations:
The Ethical Considerations exercise is intended to provoke discussion about the ethical
responsibilities required of each prosecutor in balancing the commitment to enforce the
law, protect the community, do justice, represent the state, and prove each element of
each offense charged against the defendant beyond a reasonable doubt.
The Faculty Manual Contains:

Ethical Considerations Exercise Directions and Worksheet on page 7.

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Visuals for Unit:

Slides are in Appendix 4, State v. Michael Cates: Case Evaluation and Ethical
Considerations.

The Participants Binder Contains:

Ethical Considerations Exercise Directions and Worksheet, at Tab 3, page


3-17.

Special Instructions for the Faculty:

Explain Ethical Considerations Exercise Give participants five minutes to


write, then ask:
o What does prosecutors discretion mean to you?
o What ethical issues do you consider when exercising it?
o Given the facts of this case, what is your ethical responsibility under the
Prosecutors Code of Conduct, which requires that a prosecutor must prove
each element of each crime charged against the defendant beyond a
reasonable doubt?
o What does beyond a reasonable doubt mean?
o Is it an objective or subjective standard?

Refer the Participants to the Resources Book: Other material relevant to this
section is in Volume 1, Tab 1, Prosecutors Code of Conduct, Tab 2, Rape
Myths: The Prosecutors Special Challenge, and Tab 8, Investigation
Techniques, as well as in Volume II, Tab 17, Interagency Cooperation.

10:15-10:30

Break

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WORKSHEET
STATE V. MICHAEL CATES
Case File Exercise
Directions: Participants are divided in half. Based on the information in the case file,
half the room is assigned to argue the strengths of the case and half to argue the
weaknesses.
Use this worksheet to note your assessment of the case, depending on your assignment.
Then discuss the case at your table preparatory to a report back and group discussion.
Allow 10 minutes for this portion of the exercise.
The reporter is the person at the table whose last name begins with Z or the letter closest
to it. If you are the reporter, please use the back of this sheet to take notes during your
tables discussion and to prepare for the report back to the full group. Allow 20 minutes
for the report back.
STRENGTHS

WEAKNESSES

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WORKSHEET
STATE V. MICHAEL CATES
Ethical Considerations Exercise

Directions: Take five minutes to jot down your responses to these questions.
The prosecutor presenter will ask participants for their answers. Allow 25
minutes for this discussion.

What does prosecutorial discretion mean to you?

What ethical issues do you consider when exercising your prosecutorial discretion?

We have discussed the case of State v. Michael Cates. In thinking about whether to
charge a case of this nature, what ethical issues do you consider?

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VICTIMS: WHAT PROSECUTORS NEED TO KNOW


VICTIM IMPACT OVERVIEW
Faculty Needed:

Victim Impact Expert

Format for Unit:

Lectures, Video and Group Discussion

Time Allotted:

Day I: 10:30 a.m. to 12:00 p.m.


1 hour, 30 minutes

Content Overview Victim Impact:


This Victim Impact Overview section is divided into three parts:
Part I: Victims Behavior During the Assault focuses on the victims response during
an assault. The victim impact expert will explain the flight, fight or freeze responses,
covering issues such as frozen fright, dissociation and automatic and strategic nonresistance
Part II: Videotape Someone You Know graphically depicts the real-life emotional
responses of victims of non-stranger rape. Show Someone You Know Video, then
debrief the participants.
Part III: Sequelae of Rape Victimization focuses on the victims post-assault response
including Acute Stress Disorder, Rape-Related Posttraumatic Stress Disorder, reasons
for delayed reporting and their implications for the interview and trial processes, and
how prosecutors can support victims, minimize re-traumatization and develop
maximum cooperation and information. When a prosecutor understands a victims
behavior, it allows the prosecutor to be more supportive, thereby gaining the victims
trust and cooperation.
This Faculty Manual Contains:

Directions for showing the video on page 9.


Video Synopsis of Someone You Know on page 11.
Faculty Cheat Sheet for video discussion on page 12.

Visuals for Unit:

Slides are in Appendix 5, Victim Impact.

The Participants Binder Contains:

Experts Slides for Parts I and III are in Tab 4, page 4-2.

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Special Instructions for the Faculty:

Faculty Introductions: Program moderator introduces the victim impact expert


and explains the three segments of this unit: overview, application and exercises.

Lecture Outline/Visuals: The 53 slides in Appendix 3 provide the outline of the


substantive content for sections 1 and 3. The expert should use these visuals as
the outline of the presentation.

Someone You Know Video and Debriefing: The expert shows the first
twenty minutes of the video Someone You Know, then debriefs participants on
their reactions. This video brings home the damage of nonstranger rape and its
very long-term duration.

Note that the accounts you will see in this video are somewhat atypical in that
some of these victims suffered serious physical injury and/or weapons were used
in the attack. Most rape victims do not suffer physical injury and generally
weapons are not used. Nonetheless, this is the best video currently available on
the impact of nonstranger rape. You can point out to participants that the video is
atypical in this one respect.

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Someone You Know is an intense video that has a strong effect on many
viewers. After you stop the video, leave a moment or two of silence to allow it
to sink in and let participants collect their thoughts before turning on the lights
and beginning the discussion.
It is important to allow time for discussion after the video presentation. We
have presented this video with and without discussion and found that a
discussion much improved the understanding of the issues. For example, the
first victim in the video married a year and a half after the rape. She still reports
flashbacks, difficulty with her sexual relationship with her husband, and suicidal
thoughts and actions. Nevertheless, several judges in a program that did not
allow time for discussion said at lunch that they felt the fact that she was able to
marry lessened the impact of the trauma. By airing this in discussion, the
judges understood more clearly that the marriage was a desperate attempt at
normalcy.
In case certain key questions are not asked during the discussion, use the Cheat
Sheet that follows on page 12 and make the points listed.

The video Someone You Know can be


ordered from :
Phoenix Learning Group, Inc.
2349 Chaffee Drive
St. Louis, MO 63146
Phone:(314) 569-0211
Fax: (314)569-2834
Email: phoenix@world.att
Cost: $125.00
Cost: $125.00
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Refer the Participants to the Resources Book: Other material relevant to this
section is in Volume I, Tab 3, Victim Impact.

12:00-1:00

Lunch

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VIDEO SYNOPSIS
Someone You Know

The video begins with a voice-over reenactment and printout of the transcript of an actual
911 call. It opens with the female victim screaming that someone is trying to break into
her home and continues with her on the line to the police as the man breaks into her home
and rapes her. The male narrator of the film points out that most women fear stranger
rape, but that Someone You Know poses a greater threat, as revealed in the 1985
statistics on reported and unreported stranger and nonstranger rape, which he recites.
This is followed by interviews with 7 women 5 in their 20s, one about 30, one 50; 6
white, 1 black who were raped by nonstrangers: a long-term ex-boyfriend, dates, a
friends brother, and a gang of college students. The women describe the horror of the
experience and its indelible impact on their lives. These rapes happened between one and
ten years before the film was made, and the women are still traumatized. They have
nightmares, flashbacks, great difficulty in trusting any man, constant fears of rape and
other symptoms of Rape-Related Posttraumatic Stress Disorder.
The scenes with the rape victims are inter-cut with commentary by the director of the
Rape Treatment Center at Santa Monica-UCLA Medical Center and a leading academic
researcher on campus rape. These experts explain that, contrary to common
misperceptions, rape by someone you know is not simply about bad sex, but rather a
horrible violation in which women feel totally powerless and often fear for their lives.
Stopping the Film: Part I of the film does not have a formal end, but the themes clearly
switch at this point. Stop the film after approximately 20 minutes (after Gail Abarbanel,
Director of the Rape Treatment Center at Santa Monica-UCLA Medical Center, talks
about how striking it is that every rape victim she has seen believed she was confronting
death).

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FACULTY CHEAT SHEET


Someone You Know Videotape: Discussion
If prosecutors in the audience do not raise the following questions about this video, the
expert should make the points below:

Victim Who Married:


The first woman in the film got married a year and a half after the rape. If she
was so traumatized, how could she get married? Does that mean she wasnt really
so upset?

Duration of Posttraumatic Stress Disorder:


One of the women in the film said the rape had happened ten years ago and she is
still terrified. Is such a long duration of Posttraumatic Stress Disorder unusual?

Level of Violence/Use of Weapons:


You said before the film began that the stories in the film were atypical in that
they involved a lot more violence and weapons than is usual. Is the reason these
women are so traumatized the fact that they were beaten up and threatened with
guns or other weapons?

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THE NEUROBIOLOGY OF TRAUMA: IMPLICATIONS FOR RAPE VICTIMS


Faculty Needed:

Victim Impact Expert

Format for Unit:

Lecture

Time Allotted:

Day I: 1:00 to 2:00 p.m.


1 hour

Content Overview Neurobiology of Trauma:


New brain research demonstrates that traumatic memories are stored and retrieved in
different ways than non-traumatic memories, with significant implications for victims
ability to recall and recount.
Visuals for Unit:

Slides are in Appendix 6, Neurobiology of Trauma. These visuals provide the


outline of the substantive content of the experts presentation.

The Participants Binder Contains:

Neurobiology of Trauma Slides at Tab 5, page 5-2.

Special Instructions for the Faculty:

Lecture Outline/Visuals: The visuals provide the outline of the substantive


content of this section. The expert should use these visuals as the outline of their
presentation.

Refer the Participants to the Resources Book: Other material relevant to this
section is in Volume I, Tab 3, Victim Impact.

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VICTIM IMPACT AND INTERVIEWING:


WHO MUST THE COMPLAINANT TELL
Faculty Needed:

Victim Impact Expert

Format for Unit:

Plenary Exercise

Time Allotted:

Day I: 2:00 to 2:15 p.m.


15 minutes

Content Overview Who Must the Complainant Tell:


Once a person discloses a sexual assault, she or he must give a detailed account of the
incident to many people (e.g., friends, family members, police, medical personnel, crime
Victim Advocates and, finally, you). This exercise presents a typical chronology in
which a victim must relate this highly personal information to dozens of people in the
course of a prosecution.
This Faculty Manual Contains:

A Faculty Cheat Sheet for this exercise is on page 16.

Special Instructions for the Faculty:

Explain Who Must the Complainant Tell Exercise:


The prosecutor presenter states the following and, as she speaks to the participants
asks the requisite number of them to stand. At the end of the list everyone in the
room should be standing. This gives everyone in the room a picture of how many
strangers a complaining witness must tell.
o A sexual assault victim first tells a friend or family member (1) who
encourages her to call the police.
o The victim then tells a dispatcher (2) who sends a uniformed officer to
respond.
o She tells the first officer (3) what happened, and if the officer requests
assistance from a supervisor she will have to tell the story again. (4)
o The victim is then taken by ambulance to a hospital. While in the ambulance
she has to tell the EMS personnel what happened. (5)
o When she arrives at the hospital the victim then tells the clerk or triage nurse
what happened. (6)
o A physician or nurse (7) next interviews the victim; a rape crisis counselor (8)
might be present for support.

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o The preliminary report is sent to investigations and the detective assigned to


the case will contact the victim for a follow-up interview. (9)
o The detective arranges for an interview with the prosecutor (10).
o At this time a Victim Advocate may be assigned. (11)
o Fast forwarding to the trial and skipping the preliminary hearing or Grand
Jury, the victim will have to again tell her story in a courtroom in the presence
of a judge (12) a prosecutor (13) a defense attorney (14) the defendant (15) a
court reporter (16) the jury (17-28) the court officers (29-31) and anyone who
happens into the courtroom.
These are only some of the people the victim will tell about this traumatic
experience. Given that the victim must describe her experience to so many people
in such different situations, it is understandable that inconsistencies often arise.

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FACULTY CHEAT SHEET

STATE V. MICHAEL CATES


Who Must the Complainant Tell

After the demonstration part of the exercise there will be approximately ten minutes left
to question participants about its implications. Here are suggested questions for the
Prosecutor Presenter to choose from.
1.

Do you expect the complaining witness to relate the attack in the same way each
time the facts are retold?

2.

Why or why not?

3.

What problems arise from a complaining witness having to describe the attack so
often?

4.

What can you do to avoid a complaining witness having to retell the event
countless times?

5.

If the complaining witness tells inconsistent versions of the attack, how do you
deal with the inconsistencies?

6.

When do you deal with them during the proceedings?

7.

During the voir dire, will you ask the venire anything relating to possible
inconsistent statements? If so, what?

8.

What will you say during your opening statement?

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INTERVIEWS: WORKING WITH THE VICTIM TO PULL THE CASE


TOGETHER
Faculty Needed:

Prosecutor Presenter(s)
Victim Impact Expert
Victim Advocate

Format for Unit:

Group Discussion and Lecture

Time Allotted:

Day I: 2:15 to 3:30 p.m.


1 hour, 15 minutes

Content Overview Working with the Victim to Pull the Case Together:
This units focus is on the value of eliciting the complaining witness detailed
recollection of the assault (e.g., how she felt during and after; tactile memories of room,
floor, etc.) for use at trial. This is especially important in a frozen fright case to allow the
jury to understand the victims state of mind during the incident. This unit continues to
build on what participants have already learned from the case file. What questions would
participants ask of complainant in the Cates case?
Visuals for Unit:

Slides are in Appendix 7, Interviewing the Victim.

The Participants Binder Contains:

The outline Working with the Victim to Pull the Case Together is in Tab 6,
page 6-2.

Special Instructions for the Faculty:

Explain the goals of the interview:


1. Build rapport.
2. Get the facts of the crime.
3. Learn everything about what happened before, during and after the crime.
(Develop texture and details).
4. Avoid retraumatizing the victim.

Explain the group discussion: Before beginning the lecture portion of this unit,
the presenter should ask participants how they would prepare for the interview
with Amanda Brown. Write the responses on a flip chart. Discuss the points
below if not mentioned by the participants.

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Before the complainant arrives in your office:

Read every report, statement, medical chart and other any document(s)
related to the case.
Listen to 911 tapes, if they exist.
Review crime scene photos, diagrams and reports, if they exist.
Read the law relevant to the facts presented.
Speak with the police involved in the case.
Start a list of possible witnesses and evidence they would provide if called
to testify.
Never make a charging decision before interviewing the victim.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume I, Tab 9, Witness Preparation.

Content Overview Tensions In the Interviewing Process:


These interviews are difficult in that the complainant may be emotionally vulnerable,
displacing her anger onto the prosecutor. The prosecutor may be facing the statutory
deadline in which to get the information needed to present to a Grand Jury or in a
preliminary hearing, in order to get an indictment.
This section explores how a prosecutor can overcome these tensions, in order to
maximize the information obtained while minimizing retraumatization. The three faculty
needed for this segment address three aspects of this challenge as follows:

Prosecutor Presenter: What You Need to Elicit


Victim Impact Expert: How to Accomplish This While Minimizing
Retraumatization
Victim Advocate: How to Get What You Need

Caveat:
Tailor this section to reflect your jurisdictions procedures. This section is now designed
to reflect the needs of jurisdictions dealing with grand jury or preliminary hearing time
constraints.
In some jurisdictions, prosecutors do not interview the complainant before charging a
case, but rely on the police investigation. This is a potentially problematic practice, in
that much can be learned from the complainant regarding what happened during the
incident. After interviewing a complainant a prosecutor may decide that different or

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additional charges should be lodged against the defendant. If this program is presented in
a jurisdiction where the prosecutor does not interview the complainant before charging
the case there should be a discussion about such a practice.
Special Instructions for the Faculty Lecture: Key Points For Conducting The
Interview:

Give the victim control over some aspects of the interview. Ask how she wishes
to be addressed, whether she wants to sit or stand, and what time to conduct the
interview. These seem like small and insignificant items, however, the person
before you has experienced lack of control so profound that these small measures
of control may be extremely important to her.
At each meeting with the victim explain what will happen and why you are
requesting the meeting.
Explain what is happening with the case each time you meet with the victim.
Explain what role she will play on that day.
Always tell the truth and NEVER promise what you cannot deliver, e.g., a
conviction at trial.
Explain at the beginning that the trial process often is slow and there are frequent
delays.
Let the witness talk. Encourage her to use the narrative form to tell what
happened.
o This form allows for a clearer sense of the facts, and will afford you an
opportunity to appraise the witness in terms of intelligence, verbal ability,
memory, emotion, personality, bias, and body language.
o The narrative form will help you get the overall picture of what occurred.
o After the complainant has described the incident, ask her to break it down in
small bits. Small bits of information are easier for the witness to describe and
for a jury to digest.
o Probe the details of each segment:
pre-incident (what was the complainant doing before the rape);
incident (the rape);
post-incident (where did she go, who did she call, who did she see);
reporting (when, to whom) if the incident was not reported immediately.
LISTEN to what the victim is saying. Assume nothing.
Remember that each time the victim retells the facts of the incident it is traumatic.
Attempt to minimize that trauma.
Tell the victim that if there is anything she does not understand you will explain it
to her. Explain that there is no shame in not understanding a particular word or
legal process. Be patient and caring.
Remind the victim that you need to know every fact regardless of how
insignificant it seems, or if she believes it will hurt the case. Remember there is
no such thing as an unnecessary fact.

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Ask the complainant to close her eyes and visualize in her minds eye the scene,
the objects there, the lighting, the distances, and just what happened.
Recognize that this will cause trauma and be prepared to deal with it.
Recognize that the victim is the expert on what happened to her. Learn from her.
More likely than not the victim will be different from you age, race, sex, sexual
orientation or any of a number of other ways. Do not presume you know or
understand her. Ask for her guidance and explain that you can learn from her.
This will go a long way to establishing a rapport with the victim.
Ask the victim how she knows the defendant. In a case where the parties have
any acquaintance with each other, ask the victim how she knows the defendant.
Simply asking if a victim knows a defendant may produce a no where the
acquaintance is recent or slight.
Explain that the defendant is telling his attorney everything about the crime from
his point of view. If they were drinking or using drugs, the defense attorney
knows it. Ask her what he is telling his attorney.
Remind her that the defense attorney will cross-examine her during the trial. If
you are surprised by hidden facts it might be impossible to protect her.
If you sense that the victim is being less than truthful, remind the victim about
telling the truth, and about perjury.
Let the victim know that you may require her to retell the facts of the incident
many times so that you can clearly understand what happened.
If a question/problem presents itself while the victim is retelling her account of
the facts, ask her about it. If you have the question, so will the jury. You may
want to address it on your direct examination rather than allow defense the
opportunity to bring it out on cross-examination. Do not allow the jury to
speculate about any issue.
Ask the victim to tell you in great detail about what she was doing before the
incident, e.g., who was she with, where they were, how did she get to the location
where the rape took place.
Ask the victim to tell you in as much detail as possible how the rape ended.
What did the defendant say to the victim?
Were they interrupted? If so by whom?
What did she do afterward?

TENSIONS IN THE INITIAL INTERVIEW


Faculty Needed:

Prosecutor Presenter(s)

Format for Unit:

Exercise and Plenary Discussion

Content Overview Tensions in the Initial Interview:

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A prosecutor must elicit sufficient information before the statutory deadline for a
preliminary hearing or Grand Jury presentation to make out a prima facie showing of
every element of every crime charged. Often a complainants psychological state and
negative experience with the criminal justice system make it difficult to elicit this
information. This segment uses hypotheticals presenting the complaining witness in
three different emotional states to provide prosecutors with ideas for maximizing the
information gathered in the initial interview while minimizing retraumatization.
This Faculty Manual Contains:

Tensions in the Initial Interview Exercise Directions and Worksheet on page 23.

Visuals for Unit:

Slides are in Appendix 7, Interviewing the Victim.

The Participants Binder Contains:

Tensions in the Initial Interview Exercise Directions and Worksheet at Tab 6,


page 6-5.

Special Instructions for the Faculty:

Explain Tensions in the Initial Interview Exercise:


Three hypotheticals on the complaining witness possible response during the initial
interview.
o Directions for Exercise: The worksheet that follows presents three scenarios
respecting the way Amanda Brown might behave during her initial interview
with the prosecutor. For each, consider how you will elicit the information you
need while minimizing retraumatization. Allow 10 minutes to discuss the three
hypotheticals with your tablemates. Expert leads a plenary discussion for the
remaining 20 minutes.
If the discussion leader notices that one person or group is more vocal than the
others, ask that person or group select another person or group to respond, or ask
who has not spoken yet. It is a good practice to avoid allowing one person or
group to dominate the discussion.

Key Points For Faculty:


o

Ask participants if anyone has dealt with victims in similar emotional states?
What did you do?
If not, what would you do?

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If no response from participants, have victim impact expert explain the best
way to maximize interviewing while minimizing retraumatization.

o Stress multidisciplinary teamwork with Victim Advocate and possibly others.


o Important to ask victim and Victim Advocate about victims prior experience in
the system to determine whether this is a factor in her reticence/resistance.

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Issues to review:
o
o
o
o

shock/Acute Stress Disorder/R-RPTSD Symptoms


inability or unwillingness to recount aspects of the incident
prevent revictimizing the victim
statutory time limits for preliminary hearing & Grand Jury

3:30 3:45

Break

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WORKSHEET

STATE V. MICHAEL CATES


Tensions in the Initial Interview Exercise

Hypotheticals
In each of the following hypotheticals assume that:

you are meeting the complainant for the first time;


the case file was given to you shortly before the meeting;
the alleged perpetrator is in custody;
you have only a short time before you must present the case to either the Grand
Jury or at a preliminary hearing.
If you do not meet the statutory time requirement for your jurisdiction, the defendant will
be released.
Take 10 minutes to discuss the following three hypotheticals with your tablemates. The
faculty presenter will then conduct a plenary discussion for the remaining 20 minutes:
1. Your complainant (Amanda Brown) comes to your office with her friend. As you
know, the complainant is a 19 year-old college student. She claims to have been
raped by a classmate. As she sits in your office, crying while rocking back and forth,
all she can say is, He raped me. She stares into space and is not responsive to any of
your questions.
What do you do?

2. We are changing the fact pattern. This time you learn that Amanda Brown
had quite a bit to drink. She does not remember how much she drank. She is fuzzy
about the details of the incident. She does know that she did not want to have sex with
the defendant.
What, if any, new problems does this present for your case?

What interview techniques will you use, given these facts?


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3. Once again, we are changing the fact pattern. Complainant Amanda Brown
readily states that she was raped by Michael Cates, but when asked to tell more about
the sexual conduct, she refuses. She taps her fingers on your desk, swings her foot,
looks out the window and will not look at you while she speaks. Every now and
again she lets out a deep breath. She asks why you need to ask such questions.
The law in your state requires that the complaining witness testify with specificity
regarding what is meant by rape. She must testify about the specific sexual conduct,
i.e., what body parts touched which body parts.

What strategies would you use to get the information you need to proceed?

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ENHANCING THE PROSECUTOR/VICTIM PARTNERSHIP:


BUILDING TRUST
Faculty Needed:

Prosecutor

Format for Unit:

Small Group Exercise and Plenary Discussion

Time Allotted:

Day I: 3:45 to 4:45 p.m.


1 hour

Content Overview Enhancing the Prosecutor/Victim Partnership:


This unit focuses on identifying and bridging the differences between prosecutors and
victims backgrounds (e.g., race, class, age, gender, education). We will discuss how
these differences can affect prosecutors and victims interactions, becoming a barrier to
effective prosecution, and share strategies to overcome these barriers and build trust.
This Faculty Manual Contains:

Building Trust with Amanda Brown Exercise Directions and Worksheet at page
28.
Building Trust with Diverse Victims Exercise Directions and Worksheet at
page 29.
Building Trust with Diverse Victims Faculty Cheat Sheet at page 30.

Visuals for Unit:

Slides are in Appendix 8, Enhancing the Prosecutor/Victim


Partnership: Building Trust.

The Participants Binder Contains:

Building Trust with Amanda Brown Exercise Directions and Worksheet, at Tab
6, page 6-10.
Building Trust with Diverse Victims Exercise Directions and Worksheet, at Tab
6, page 6-11.

Special Instructions for the Faculty:

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Explain Exercise: Building Trust with Amanda Brown (15 minutes)


Using what participants have learned from the case file State v. Michael
Cates,
and the additional facts about Complaining Witness Amanda Brown
revealed on
the worksheet for this exercise, address the issues of:
how the complainant may be different from you;

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what challenges you anticipate in building bridges to the


complainant; and
what strategies you would employ in overcoming these challenges.

o Directions for Exercise: Allow five minutes for participants to jot down their
answers on the worksheet and discuss their answers with their tablemates
preparatory to a report back. The reporter will be the person at the table
whose last name is closest to the letter L, who was not a reporter for earlier
exercises. Allow 10 minutes for the report back.

Explain Exercise: Building Trust with Diverse Victims (45 minutes)


The second part of this exercise is devoted to expanding the discussion to
address challenges and strategies generally. It consists of a table
discussion and a report back based on three hypotheticals.
o Table Discussion: Have the participants discuss these hypotheticals at
their tables for 15 minutes. Participants should call on their prior
experiences and brainstorm regarding how they would overcome
challenges in the three hypotheticals presented. What strategies
would they use to build trust with these three victims?
o Report Back: The participants may have experience in diverse communities
and therefore have good practical strategies that they employ in overcoming
challenges to building trust. Use this report back to elicit participants
strategies. The reporter (see directions above) from each table reports. No
repeats each reporter adds new ideas. Prosecutor presenter recaps and
invites contributions from other faculty. Group Discussion. Allow 30 minutes
for this group discussion.

Discussion Tips and Key Points


o Stress sharing good strategies in overcoming challenges.
o In any group of prosecutors, but especially in a group that is predominantly
white, it is important to address prejudices and pre-existing biases, real and
imagined. Generally, a white person addressing these issues is not seen as
having a particular agenda, whereas a person of color is viewed through a
particular lens. Additionally, like members of a group hear each other more
easily. It is easier for police officers to discuss difficult matters with other
police officers, judges to talk to judges, and men to discuss violence against
women with other men.

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o Address the power imbalance. Many complainants are intimidated by the


prosecutor because of the difference in education, class, sex or simply because
the prosecutor represents the state or is viewed as all-powerful. An example
of how to acknowledge this power imbalance is to admit that you dont know
what it is like to live in the victims skin. Indicate that you are relying on her
to help you learn what happened so that you can develop the case together.
o Cultural competence is not only about the differences between the prosecutor
and the complainant. The prosecutor must be alert to differences between
him/herself, and the complainant and the jury that may affect the case.
o What is culture?
o Cultural competence is not just about race and ethnicity. It includes class,
sexual orientation, age, disability, religion, etc.
o Why cultural competence will make you a better prosecutor.

Direct participants attention to the many types of communities about which


there is specific information in the Resources Book (e.g., elderly, lesbian,
African-Americans). Encourage participants to obtain the materials on the
mentally disabled, for which there is an order form, so that this material will be
available when needed.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume I, Tab 4, Cultural Competence and Victim Sensitivity.

4:45 4:50

Stretch Break

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WORKSHEET
STATE V. MICHAEL CATES
Building Trust with Amanda Brown
Directions: Below are some facts you have already learned about complaining witness
Amanda Brown and some additional facts. Take five minutes to discuss the questions
below with your tablemates and complete the worksheet. The reporter will be the
individual whose last name is closest to the letter L, who was not a reporter from an
earlier exercise.
Facts
Amanda Brown is a 19-year-old college sophomore. She is black, 51 and 105 pounds.
She won an academic scholarship to the university she and the defendant attended. She
maintained a 4.0 GPA. She and the defendant were both members of the drama club.
Ms. Brown is a first generation American. Both of her parents emigrated from Jamaica.
The Browns do not believe in bringing their troubles to government agencies. They do
not trust the police or the criminal justice system. They have seen how the police treat
other members of their community. The Browns are strict Catholics and brought up
Amanda and their other children in the Church. Amanda herself is a very devout
Catholic.

How are you and Amanda Brown different from each other?

What challenges will you face in bridging these differences?

What strategies will you use to overcome them?

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WORKSHEET
ENHANCING THE PROSECUTOR/VICTIM PARTNERSHIP:
BUILDING TRUST
Building Trust with Diverse Victims
Directions: Take 15 minutes to discuss the three hypotheticals below with your
tablemates and complete the worksheet. Develop strategies to establish a trusting
partnership with the complainant. Use your prior experience and what you have learned
thus far in the training to develop these strategies. The reporter will be the individual who
acted as the reporter in the prior Building Trust with Amanda Brown exercise.

1a. The victim is a young deaf woman. How can you communicate with her?

1b. It has now come to your attention that she does not understand American-sign
language. How would you proceed?

2. The victim is a lesbian. She does not believe the prosecutor has an interest in seeing
justice done in her case. Her experiences with the criminal justice system, thus far, have
not been good.

3. The victim is a 20-year old mother of three. She has not completed school and has
trouble reading. The only contact she has had with the criminal justice system is through
her brother who was arrested, but never charged.

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FACULTY CHEAT SHEET

ENHANCING THE PROSECUTOR/VICTIM PARTNERSHIP:


BUILDING TRUST
Building Trust with Diverse Victims

If during the report back participants are unable to think of any strategies to overcome
potential problems, the prosecutor presenter may use the points below to start the
discussion.
Respect is the key to building trust in each of these hypotheticals.
Keep in mind difficulties prosecutors may encounter with the jury and any fears the
victim may have about being judged by a jury.

Deaf Victim
1. Ask the victims friend or a family member to assist in the initial contact with the
complainant.
2. Ask the victim what method of communication she prefers to use.
3. Ask the victim how you can contact her.
4. Ask if she has a TTY.
5. Ask if she reads English.
6a. Determine if she is comfortable discussing the incident in the presence of the friend or
family member once you have established a method of communication and before asking
about the incident.
6b. If she is not comfortable proceeding in the presence of a friend or family member,
make arrangements to communicate with her through an interpreter.
7. Ask her to stop you at any time to ask questions or to explain a concept she does not
understand.
8. Explain that you may stop her to ask for clarification.

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Lesbian Victim
1. Ask if the victim has a support system.
2. Ask if she has any non-legal concerns, such as being outed.
3. Always tell the truth.
4. Never guarantee a particular outcome.
5. Explain that you cannot present the case without her cooperation and you will do the
best you can.
6. Ask about her experience with the arresting officer and with the hospital staff.
Uneducated Victim
1. Use simple language, but be careful not to talk down to her.
2. Reassure the victim that you welcome all of her questions.
3. Explain that if she thinks of questions when she gets home you will be available to
answer them.
4. Ask her to stop you if she does not understand something.
5. Ask her about what frightens her about the criminal justice system.
6. Explain where in the criminal process the case is each time you meet with her.
7. Support the victim; do not make her feel deficient.
8. Explain that she is a partner in the presentation of the case.

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EXERCISE: GETTING THE REAL DEAL


Faculty Needed:

Prosecutor Presenter(s)

Format for Unit:

Small Group Exercise

Time Allotted:

Day I: 4:50 to 5:35 p.m.


45 minutes

Content Overview Getting the Real Deal:


Complaining witnesses are often reluctant to reveal facts that would cast them in a poor
light, but prosecutors must have this information to avoid being blindsided at trial. This
exercise explores techniques to elicit these important (though unfavorable) facts from the
complaining witness, while building rapport.
This Faculty Manual Contains:

State v. Michael Cates Getting the Real Deal Exercise Rules for Faculty Only,
page 29.
Getting the Real Deal Participants Exercise Directions and Worksheet, page
31.
Getting the Real Deal Exercise, a handout for participant playing the
complaining witness, page 32.
The Full Story Handout for all participants, page 33.
State v. Michael Cates Faculty Cheat Sheet, page 35.

The Participants Binder Contains:

Getting the Real Deal Exercise Directions and Worksheet at Tab 7, page 7-7.

Special Instructions for the Faculty:

Explain Getting the Real Deal Exercise: Interviewing Role Play.


In this table exercise one participant plays the complaining witness and is given a
list of four negative, undisclosed facts that the prosecutor must elicit to fully
understand the case. Each complaining witness is given one of these facts to focus
on. The complaining witness leaves the room for five minutes while participants
develop a questioning strategy. Then the complaining witness returns and the
group questions him or her for ten minutes. This is followed by a fifteen-minute
report back and group discussion about whether the tables elicited the undisclosed
facts and the effectiveness of the interviewing. Next, each participant is given
The Full Story handout and there is a fifteen-minute discussion about how these
new facts will affect their trial strategy.

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After this exercise, participants receive The Full Story, which provides more
detail than the case file.

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FACULTY ONLY: RULES FOR GETTING THE REAL DEAL EXERCISE


STATE v. MICHAEL CATES
Getting the Real Deal Exercise
Directions: At each table the prosecutor whose last name begins with the letter
M or the letter closest to it plays the complaining witness in State v. Michael
Cates. She is very reluctant to disclose anything beyond what is already known
from the case file and initial interview. However, there are four important
undisclosed facts about the rape that the prosecutors must elicit. The prosecutor
presenter assigns one of these undisclosed facts to the complaining witness at
each table.
Each complaining witness leaves the table for 5 minutes while the other
prosecutors caucus to discuss their interviewing strategies and develop a set of
questions. The prosecutor to the immediate left of the prosecutor playing the
complaining witness uses these and other questions to conduct the interview for
10 minutes.
Listed below are facts that for a variety of reasons have not yet been disclosed in
our model case. They are unpleasant facts, or facts that the complainant believes
will hurt her credibility or hurt the case if she tells. If the complainant is asked a
direct or effectively probing question about any of these facts she must respond.
Otherwise, make the interlocutor work for the information. After 15 minutes, the
prosecutor presenter asks the complaining witness at each table to tell whether the
questioner was able to elicit the assigned fact and how he or she did it, and puts
the facts on a flip chart. The complaining witness should also be asked how the
questioner did and whether any of the questions felt unnecessarily insensitive or
inappropriate. The faculty will then comment on effective interviewing
techniques.
The Undisclosed Facts
1. You and the defendant were smoking pot before the rape. You are afraid that the
prosecutor will believe that you are a bad person because you engaged in an illegal
activity. Further, you are afraid that you will be arrested and prosecuted if you reveal
this to the prosecutor.
2. You and the defendant drank rum and cokes. You did not tell the prosecutor that you
actually drank two and one half drinks in fairly quick succession. You were drunk,
but aware of what was happening around you.
3. You did not tell the prosecutor that the defendant drove you home after the incident.
You did not tell because you did not think it was important. It happened after the
incident. Further, you think that no one will ever know this.
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4. You called the defendant the next day. A woman answered the phone. You only left
your name and phone number and no other message.

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PARTICIPANTS WORKSHEET
STATE V. MICHAEL CATES
Getting the Real Deal Exercise
Directions: At each table the prosecutor whose last name begins with the letter closest to
the letter M plays the complaining witness, who is very reluctant to disclose anything
beyond what you already know from the case file and initial interview.
The complaining witness leaves the table for 5 minutes while the other prosecutors
caucus to discuss their interviewing strategies and develop a set of questions. Whoever is
seated to the immediate left of the complaining witness uses these and other questions to
conduct the interview for 10 minutes. After 15 minutes, the moderator asks the
complaining witness at each table to tell whether the questioner was able to elicit the
assigned fact and how he or she did it, and puts the fact on a flip chart. The complaining
witness should also be asked how the questioner did and whether any of the questions felt
unnecessarily insensitive or inappropriate. The faculty will then comment on effective
interviewing techniques. Allow 15 minutes for this discussion.
Note your suggested questions below.

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HANDOUT FOR PARTICIPANT PLAYING THE COMPLAINING WITNESS ONLY


STATE v. MICHAEL CATES
Getting the Real Deal Exercise
Directions: At each table the prosecutor whose last name begins with the letter
closest to the letter M plays the complaining witness in State v. Michael Cates,
who is very reluctant to disclose anything beyond what is already known from the
case file and initial interview. The prosecutor presenter will assign one
undisclosed fact to each complaining witness.
The complaining witnesses leave their table for 5 minutes while the other
prosecutors caucus to discuss their interviewing strategies and develop a set of
questions. The prosecutor to the immediate left of the prosecutor playing the
complaining witness uses these and other questions to conduct the interview for
10 minutes.
Listed below are facts that for a variety of reasons you have not yet disclosed in
our model case. They are unpleasant facts, or facts that you believe will hurt your
credibility or hurt the case if you tell. If you, as the complainant, are asked a
direct or effectively probing question about any of these facts you must respond.
Otherwise, make your interlocutor work for the information.
Listed below are the four undisclosed facts. After 15 minutes, the prosecutor
presenter will ask the complaining witness at each table to tell whether the
question was able to elicit the assigned fact and how he or she did it, and will put
the facts on a flip chart. The faculty will then comment on effective interviewing
techniques. The complaining witness should also be asked how the questioner did
and whether any if the questions felt unnecessarily insensitive or in appropriate.
The Undisclosed Facts
1. You and the defendant were smoking pot before the rape. You are afraid the
prosecutor will believe you are a bad person because you engaged in an illegal
activity. Further, you are afraid you will be arrested and prosecuted if you reveal this
to the prosecutor.
2. You and the defendant drank rum and cokes. You did not tell the prosecutor that you
actually drank two and one half drinks in fairly quick succession. You were drunk,
but aware of what was happening around you.
3. You did not tell the prosecutor that the defendant drove you home after the incident.
You did not tell because you did not think it was important. It happened after the
incident. Further, you think that no one will ever know this.

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4. You called the defendant the next day. A woman answered the phone. You only left
your name and phone number and no other message.

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HANDOUT TO BE GIVEN TO ALL PARTICIPANTS


STATE v. MICHAEL CATES
The Full Story
On or about Dec. 15, 1999, both the Complaining Witness, Amanda Brown, and the
Defendant, Michael Cates, who are members of their schools drama club, were at a
rehearsal. The rehearsal ended at about 10:30 p.m.. Cates, who was friendly with Ms.
Brown, offered to drive her home. He said that it would be safer than taking public
transportation. Amanda Brown accepted the ride. She had known Michael Cates for
about a year. He was a polite, well-mannered young man. She had a little crush on him.
Amanda Brown got into Cates car. Cates looked at the dashboard and said he needed to
get gas. He then said he needed to get his gas credit card from his room. He asked her to
come up to his dorm room, which she did.
Cates took off his coat and asked her to do the same. She thought this was odd, but did
not want to be rude. Ms. Brown took off her coat. She said that she needed to get home
or her parents would worry. Then Cates offered her an alcoholic beverage, i.e., rum and
coke. They both drank. Ms. Brown mentioned leaving again, but Cates assured her that
they would leave in a minute. She eventually drank two rum and cokes. Both Amanda
Brown and Cates smoked a joint. Ms. Brown had smoked pot on two prior occasions.
Ms. Brown and Cates were sitting on the bed in his dorm room. They began making out.
Cates put his hands on Amanda Browns breasts and tried to unclasp her bra. Ms. Brown
told Cates to stop. She struggled with Cates. Cates said, You know you want it, thats
why you are here. He pulled her sweater over her head. Cates pushed Amanda Brown
down onto the bed and got on top of her. She repeatedly told him to stop and said, Why
are you doing this? I want you to stop. I am serious, stop. As Ms. Brown struggled with
Cates, she broke a fingernail to the quick. Amanda Brown then noticed that Cates
demeanor changed. He looked angry and she thought he would explode with rage. Cates
pushed up her skirt and removed her underwear. As he pulled down her underwear, the
watch that he wore dragged across Ms. Browns upper thigh and caused an abrasion. He
held her arms above her head and put his knees between her legs, forcing them apart. He
touched her vagina. He then inserted his penis into her vagina. Amanda Brown cried.
When Cates was finished he got off of Ms. Brown. He got dressed. Ms. Brown put her
clothes on. She did not say anything. He then drove her home.
The next day, when Amanda Brown finally woke up, she was bewildered and angry
about what Michael Cates had done to her. She called his home to confront him. A
woman answered the telephone. She told Ms. Brown that Cates was not home, but she
would take a message. Ms. Brown left her name and phone number.

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Ten days after the incident, Amanda Brown went to her own doctor, who has known her
all of her life. She wanted to make sure that Cates did not give her any STDs. Ms.
Brown did not tell the doctor she was raped. The doctor found no physical injury or
disease, but noted that Ms. Browns depressed demeanor was very different from prior
visits when she was lively and engaged.
1. Defendant persuaded Ms. Brown to go
to his room under a ruse. [intent]

1. The parties knew each other.

Over the next few months, Amanda Brown experienced depression, lack of interest in life
and mood swings. She slept for long periods of time, seldom left her room, missed
classes and dropped out of the drama club. Her grades slipped, and she gained weight.
About two months after the incident, Amanda Brown had an argument with a close friend
who was attempting to get her to come out of her room and attend a concert. During the
argument, Ms. Brown blurted out that shed been raped by Michael Cates, and that was
why she did not want to go out. The friend urged Ms. Brown to report the incident. Ms.
Brown called the police and a uniform officer took the initial report from her. Amanda
Brown then spoke with a Special Victims Squad Detective.
Amanda Brown is a 19-year-old college sophomore. She won an academic scholarship to
the university she and the defendant attended. Before the rape she maintained a 4.0 GPA.
She and the defendant were both members of the drama club. Ms. Brown is 51 tall and
weighed 105 pounds at the time of the attack.
Ms. Brown is a first generation American; both of her parents emigrated from Jamaica.
The Browns do not believe in bringing their troubles to government agencies. They do
not trust the police or the criminal justice system. They have seen how the police treat
other members of their community. The Browns are strict Catholics and brought up
Amanda and their other children in the Church. Amanda herself is a very devout
Catholic.
Michael Cates is a 20-year-old white college junior. He is from a middle class working
family. They own a one-family suburban home. He is an average student. The
defendant is 62, muscular and weighs 195 pounds.

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2. The defendant mixed the drinks; they


were very strong. [intent]

2. Ms. Brown went to defendants dorm room


voluntarily.

3. Ms. Brown is articulate.

3. Ms. Brown sat on defendants bed.

4. Ms. Brown resisted both verbally and


physically.

4. They were kissing before the rape.

5. Injury to fingernail and thigh.


5. They smoked pot.
6. The defendants statements, You know
you want it, thats why youre here.
[intent]

6. Ms. Brown drank rum and cokes with the


defendant.

7. Ms. Browns demeanor before and after


the attack.

7. Defendant drove Ms. Brown home.

8. Outcry witness.

8. Ms. Brown called Defendants home and


left her name and phone number.

9. Outcry was unplanned.


9. No finding of genital injury.

10. Delayed outcry.

FACULTY CHEAT SHEET


STATE v. MICHAEL CATES

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Facts

Challenging Facts

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Special Instructions for Faculty:


Day I ends here. Be sure that participants have completed and turned in their daily
evaluations.

CONCLUSION DAY I

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VICTIM ADVOCATE/PROSECUTOR RELATIONSHIP


Faculty Needed:

Victim Advocate

Format for Unit:

Lecture and Discussion

Time Allotted:

Day II: 8:30 to 9:00 a.m.


30 minutes

Content Overview Victim Advocate/ Prosecutor Relationship:


This unit explores how working effectively with victim advocates within and outside of
the D.A.s agency can help you make your case. A victim who feels emotionally
supported by the prosecutor and victim advocate will be a stronger witness, thereby
making your case stronger.
This Faculty Manual Contains:

Victim Advocate/ Prosecutor Relationship (Lecture Outline), page 42. It should


be used in the victim advocates presentation.
Sample Victim Advocate Disclosure Form, page 43.

The Participants Binder Contains:

Victim Advocates Outline at Tab 7, page 7-2.


Sample Victim Advocate Disclosure Form at Tab 7, page 7-3.

Special Instructions for the Faculty

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume I, Tab 5, Working With Victim Advocates.

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Victim Advocate/Prosecutor Relationship (Lecture Outline)


1. District Attorneys Office Sensitive Crimes Unit
A. How does it operate? (role of advocates)
B. Why was it established?
C. Differences between in-house advocates and outside agency advocates
D. Advantages of in-house advocates
1. Close proximity
2. Familiarity with criminal justice system
3. Ability to work closely with prosecutors and establish team effort
4. Credibility with outside agencies because of association with
prosecutors office
E. Disadvantages
1. Victims may see advocate as part of the system
2. Outside agencies may see advocates as part of the system
3. Difficulty in defining advocates role
4. Privilege/confidentiality issues
2. History of sexual assault advocacy work
A. Grass roots movement
1. Challenge to beliefs and attitudes about women and the acceptance of
sexual violence against them
2. Need for survivors experiences to be at the forefront of all efforts in
this area
3. Need for survivors and advocates in policy-making processes
B. Movement was in response to poor treatment of victims by
1. Police
2. Prosecutors
3. Medical Professionals
4. Judges
5. Defense Attorneys
C. Changes that occurred
1. Revision of laws
2. Rape crisis centers
3. Legal advocates
4. Medical protocols
5. Law enforcement and prosecutor training
6. Coordinated Community Response
3. How the prosecution can best benefit from the work of Victim Advocates
A. Define goals
B. Healthy debates not power struggles
C. Have advocates play a role in system advocacy, e.g., legislative changes
D. Learn from each other, e.g., cultural competency
E. Assistance with victim rights legislation implementation
F. Training new prosecutors in victim issues
G. Second opinions on difficult decisions
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H. Advocate as active member of prosecution team

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Sample Victim Advocate Disclosure Form


Name of Victim:________________________________
D.O.B.:______________________

I acknowledge that_____________________________explained to me that information I


(Advocates Name)
discuss with__________________________District Attorneys Victim Advocates may
(Your Office)
be shared with the assistant district attorneys and advocates in the Victim Advocates
Unit, law enforcement, court personnel, office staff, probation and parole agents, presentence writers, Department of Human Services and Crime Victim Compensation.
The information shared will be for the purpose of assisting with the investigation and
prosecution of the matter involving:
________________________________________________________________________
(Defendants name or description of assault if defendant is not known):
________________________________________________________________________

____________________________________
Signature

____________________________________
(Relationship to above, if other than victim)

____________________________________
Date

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TRIAL PREPARATION AND PRACTICE


PART I: EDUCATING AND SUPPORTING THE COMPLAINANT
Faculty Needed:

Prosecutor Presenter(s)
Victim Advocate

Format for Unit:

Lecture and Discussion

Time Allotted:

Day II: 9:00 to 9:30 a.m.


30 minutes

Content Overview Preparing the Complainant for Trial:


Rape cases are stronger and the likelihood of conviction is higher if the complainant is
made to feel an ally or partner in the process, with full support from the prosecutors
office and other agencies involved in the case. The first part of this unit explores a
victim-focused trial preparation procedure that can enhance the complainants ability to
provide the prosecutor with detailed information and testify effectively. Some of the
topics covered are:
walking complainant through the trial process
dealing with continuances
affect and anger while testifying
The second part of this unit briefly explores the prosecutors trial preparation.
The Participants Binder Contains:

The outline for this unit is at Tab 7, page 7-6.

Special Instructions for the Faculty Lecture Outline:


Preparing the Complainant for Trial

Reduce the victims stress by explaining each phase of trial.

First, explain what she will do during the trial. Explain that she will not be
allowed to wait inside the courtroom but must wait elsewhere until she testifies.
(Hopefully, your office has a victim advocate who has worked with the victim
throughout the pendency of the case and will be with her during the trial). Tell her
that she will be sworn in or, if she does not swear, can affirm an oath. Explain
where she will be seated in the courtroom and where everyone will be in that
courtroom.

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Special Circumstance The Identification Case: Victims typically ask whether


the defendant will be in the courtroom. If identity is not an issue in the case you
should be sure to tell her that he will be there and she should prepare herself to
see him. However, if identification is an issue in the case telling the victim that
the defendant will be there and/or showing her a photograph will compromise the
in-court identification. If, in an identification case, defendant will be in the
courtroom, say only If you see him in the courtroom, point him out or tell us.
Defense attorneys in this type of case will ask the complainant whether the
prosecutor told her that the defendant would be in the courtroom and where he
would be sitting. If the victim says yes to either question the judge will disallow
the in-court identification.

Explain to the complaining witness that criminal cases are often repeatedly
adjourned for reasons having nothing to do with her case, e.g., the courts
calendar, the defense attorney on trial on another case, or witnesses are not
available. Keep the complaining witness informed about the reason for each
adjournment. Try to avoid adjournments, if possible, by requesting accelerated
trial dates, if your jurisdiction permits, or ask for a trial date certain.

Explain what objections are and what to do if either attorney objects to a


question. Tell her what the words overruled and sustained mean. Explain that
if she forgets she should ask the judge to clarify.

Remind the victim to ask for an explanation of a word, concept, or question she
does not understand, regardless of who asks the question. Assure her that it is
okay to say she does not understand a question, or that she cannot remember
something. She should also be assured that it is okay to disagree with any
mischaracterization of her testimony.

After you have explained the process to her, show her. Take the victim to court
and let her watch someone testify. Ask her to critique the witness. Then, in an
empty courtroom, have the victim sit on the witness stand. If the judge in your
case is willing, have her meet the judge. Show her where you will sit. Ask her
some introductory questions to get used to the acoustics in the courtroom. If a
microphone will be used, have the victim practice answering your questions using
it.

You and the advocate may need to discuss clothing choices with the victim. Never
attempt to overhaul the personality of a victim by having her dress in a manner
that is not comfortable for her. You or the victim advocate can emphasize that it is
important to show respect for the court and dress accordingly.

Prepare the victim for cross-examination.

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o Remind her that the defense attorney may attempt to make her angry while
she is testifying, or that he may be very sweet and make her feel as if she must
agree with him even though he is mischaracterizing her testimony.
o Remind the complaining witness to not assist the defense case by becoming
angry with the defense attorney, whose job it is to challenge her credibility.
o Have a colleague walk through a mock cross-examination with the victim.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume I, Tab 9, Witness Preparation.

TRIAL PREPARATION AND PRACTICE


PART II: THINKING ABOUT TRIAL
Special Instructions for the Faculty Lecture Outline:
Prosecutors Trial Preparation

Review the Criminal Jury Instructions for each element of the crime you must
prove at trial.

Create a summation folder. As you think of issues you want to use in your
summation, jot them down and put them in the folder.

Prepare your summation before constructing your voir dire, direct examinations
and the defendants cross-examination.

Create a folder for each witness you are going to present at trial. Put the evidence,
e.g., medical chart, photos, or diagrams you hope to introduce through this
witness in the folder along with the questions for this witness. If you think of a
question just throw it into the folder.

Craft the victims direct examination with the expert witness testimony in mind.
Later in the program there is a unit about expert witnesses and how to use them.
Prepare your questions so that the victims response will be supported by the
expert witness. If you are not able to admit an experts testimony, consult with
the expert to craft direct examination questions to support the theory of your case.
In your summation, use the victims testimony to conclude that her behavior was
consistent with a traumatic event.

9:30-9:45

Break

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DIRECT EXAMINATION OF THE COMPLAINANT:


RECREATING THE REALITY OF THE CRIME
Faculty Needed:

Prosecutor Presenter(s)

Format for Unit:

Lecture

Time Allotted:

Day II: 9:45 to 10:45 a.m.


1 hour

Content Overview How to Recreate the Crime and Victims Feelings for the Jury:
This unit focuses on goals for direct examination. An effective direct examination should
achieve the following:
1. Humanize the victim for the jurors. Have them get to know
her.
2. Allow the jury to see, hear and feel what the victim felt during
the crime.
3. Prove every element of every offense charged against the
defendant beyond a reasonable doubt.
4. Explain the facts fully so that the jury cannot speculate about any issue.
5. Make the witness invulnerable to cross-examination.
Visuals for Unit:

Slides are in Appendix 9, Direct Examination.

The Participants Binder Contains:

The outline for this unit at Tab 7, page 7-10.


Relevant slides at Tab 7, page 7-14.

Special Instructions for the Faculty Lecture:

Thinking about the Direct Examination


o On all your direct examinations use one of the following magic words
to begin each question: Who, What, Why, Where, When, and How.
o Use simple language. No one cares how smart you are.
o Each question should deal with only one fact.
o Write out every element of each crime you must prove beyond a reasonable
doubt.
o Determine how each bit of evidence you present will accomplish the goal of
proving every element of each crime beyond a reasonable doubt.
o Know both the facts and the elements of the crimes you must prove.

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o Direct examination should flow like a conversation. The prosecutor should not
be too busy reading the next question to listen to the answers.
Introducing the Victim to the Jury
o Take time to introduce the victim at the beginning of the direct examination.
Defense attorneys spend a great deal of time presenting their client in a
sympathetic light to the jury. You should do the same for the victim.
o Show the jury that the victim is one of them. She has ties to the community,
may attend school or church, and may have a family.
o This type of questioning does two things: it allows the jury to get to know
the victim; and it allows the victim to warm up before she must testify about
the facts of the rape.
o Introduce a victims criminal history during the introductory portion of your
direct examination. Neutralize this information by introducing it on direct,
thereby defanging any defense strategy.
o Ask the victim about her relationship with the defendant.
How does she know him?
For how long has she known him?
How did she feel about him before the attack?
How does she feel about him now?

Recreating the Reality of the Crime


o Think of each witness segment of the account of what happened as a
movie:
Each segment is a series of frames in the movie.
Together they tell about the whole incident. The witnesses are creating
moving pictures for the jury.
The more detailed the picture of the incident the complainant and other
witnesses can paint, the more likely it will be that the jury believes them.
o Use Sensory Details:
The complainants credibility is always at issue in sexual assault cases,
therefore it is important to provide the jury with the sort of tactile, sensory
evidence, listed below, that is hard to fabricate.
Break down her account of the facts into small segments. Try tying each
segment to an element of the crime you need to prove.
Ask her to describe the sensory details connected with each segment.
Craft questions to elicit evidence regarding the smells
the floor; or
the bed, or the ground against the complainants body.
Placement of various body parts during the incident:
where were her hands, legs, torso;
where were the defendants hands, legs, torso; and

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what method(s) the defendant used to restrain or strike complainant.


Description of the defendants body, starting from the head and working
your way down to his feet. For example:
Hair: color, style, amount, density, pattern
Eyes: color, size, shape, unusual characteristics (crossed, etc.);glasses
(type, style), eyebrows (bushy)
Nose: flat, thick, thin, broken, nose ring
Mouth: lips, moustache (thick, thin, type), beard (full, thin, thick,
type)
Teeth: yellow, missing, gold, broken, crooked, spaces, braces
Voice: accent, speech impediment, harsh, refined, pitch, tone
Breath: odor (foul, sweet, alcohol, smoke, garlic)
Body: type (fat, thin, muscular); scars, marks, (tattoos, moles,
birthmarks); odor (cologne, etc.)
Penis: color of his penis compared to the rest of his body
(same, darker, lighter); circumcised or uncircumcised
Pubic hair: color; texture; hair pattern
Height:
o As compared to the complainant, the ADA or police
officer
o Did the victim look up at the defendant?
o Did she look down at the defendant?
Weight: as compared to the police officer, the ADA or the
complainant
Jewelry: rings, earrings, nipple rings, nose rings, Prince Albert,
bracelet, necklace, etc.

Clothing:
o Brand, color, markings, designs
o Shoes, (clean/new, dirty/old)
o Suit, work clothes, shorts and t-shirt, gang colors, sweats.
Description of the surroundings:
o What were the surroundings made of?
o What were the stairs made of (metal, concrete, wood)?
o Sounds she heard during the attack (traffic, trains, voices, music)
Weather conditions at the time of the attack:
o Rain, sunny, cold, hot, windy
Anything else that the victim tells you happened during the attack
should be presented during the direct examination.

o Use emotional details:


Use non-judgmental open-ended questions which allow the complaining
witness to provide detailed responses to the questions.

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Ask the complaining witness about her emotions during each stage of the
attack.
just prior to the attack
as the attack continued
when it stopped.

How the Attack Ended


o Ask how the attack ended.
o Ask if the attack stopped because the defendant ended it or because there was
an interruption.
o The defendant may have ended the rape or sexual assault by making threats,
giving orders, warnings, or asking the complainant for a date.
The answer to these questions may provide important evidence to establish
the defendants state of mind, direction of flight or suggest other witnesses
to corroborate the victims testimony.
o Ask the complainant the following questions and any other questions
relevant to the facts of your particular case:
What did defendant say after the sexual assault was completed?
Did he gloat? Or apologize?
Did he go to sleep?
Did he ask for a date? Or when they could see each other again?
Did he take her home?
Did he tell her to follow any instructions?
Did he warn her not to tell anyone?
o What was his exact conduct after the attack?
Have the victim describe his demeanor.
o What was her emotional state of mind?
Have the victim describe what she did after the attack.
o Did she report it to the police?
How was the incident reported?
When?
If not reported immediately, why not?
o Ask the victim to describe the details of reporting the crime to the
police.
The place where the report was taken.
How many people were around?

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Were her children in the room?


Did she leave anything out of the report? If so, why?
Her emotional state during the reporting process.
How long did it take to report?
How long did it feel like it took?

o Ask if the victim received medical attention.


If not, why?
Describe the medical facility.
How did she get there?
Was she alone, with her children, friend, family, or police?
When did she go to receive medical attention?
How long had she been in the police station, before going to the hospital?
How many people were in the Emergency Department.
Was it crowded?
Empty?
What was she thinking?
How did she feel?
Emotionally
Physically.
o It is always a good idea to end on a strong point.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume I, Tab 9, Witness Preparation.

10:45-10:55

Break

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WHAT DO SEXUAL ASSAULT FORENSIC EXAMINERS DO, AND


WHAT CAN THEY DO FOR YOU?
Faculty Needed:

Sexual Assault Forensic Examiner (S.A.F.E.)


Prosecutor Presenter(s)

Format for Unit:

Lecture, video presentation and plenary discussion.

Time Allotted:

Day II: 10:55 a.m. to 12:40 p.m.


45 minutes

Content Overview S.A.F.E.s: Their Role and What They Can Do for Your Case:
Medical professionals specially trained to handle sexual assault cases can be critically
important in presenting and explaining the physical evidence, or lack thereof, at trials.
This unit of the curriculum covers medical terminology, the forensic examination
including colposcopy, how to use this information at trial and how to get a S.A.F.E.
program in your community. There are four parts to this unit:
Part I Sexual Assault Forensic Examiner Overview.
A. Lecture on the following topics:
1.Role of S.A.F.E.
2.Medical Terminology
3.Human Sexual Response
4.Colposcopy Slides
B. Plenary Discussion
1. When is it too late for an exam?
2. Is finding nothing and having to turn that information over too dangerous?
3. If there are no findings of physical injury to the complaining witness, how
do you deal with this issue?
4. What myths does this raise?
5. At what point in the trial would you address this?
6. What voir dire questions would you ask?
7. What could you say in your opening?
8. Would you address this in your direct examination? How?
Part II Videos: Forensic Examinations.
A. State of Art Forensic Examination of the Adult Sexual Assault Victim
shows the forensic examination of a female victim;
B. An excerpt from Sexual Assault Care: Sexual Assault the Health Care
Response shows the forensic examination of a male victim.
C. Debrief the audience

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Part III Colposcope Slides.


Part IV Bringing a S.A.F.E. program to your community.
This Faculty Manual Contains:

Introduction to the Sexual Assault Forensic Examiner Role, a text outline to


follow the visual presentation, on page 56.
Amanda Browns Medical History in Appendix 11.

Visuals for Unit:

Slides are in Appendix 10, Sexual Assault Forensic Examiners.

The Participants Binder Contains:

Related slides at Tab 8, page 8-2.


Outline for unit at Tab 8, page 8-14.
Amanda Browns Medical History at Tab 8, page 8-19.

Special Instructions for the Faculty:

Content Outline/Visuals: The 34 visuals provide an outline for the Identification


of Sexual Assault Trauma portion of this unit. The experts presentation should
use these visuals as the outline of this portion of the presentation. These slides
follow the text outline, Introduction to the Sexual Assault Examiner Role. This
outline discusses the S.A.F.E.s role, education and training, how to evaluate the
competency of S.A.F.E.s, and where S.A.F.E. programs can be located.

Explain Amanda Browns Medical History: Ask participants to read this


medical history on their own and think about the difference between this medical
history taken by a trained Sexual Assault Examiner and a medical history taken
by an Emergency Department physician with no special training.

Directions for showing the forensic examination videos: Explain that the
purpose of showing the video is not to train prosecutors to perform a forensic
exam, but to enable them to understand what an examination is like in order to
describe it to a jury and defend against defense attacks on the conduct of the
examination and the chain of evidence.
The female victim in the first video sustained injuries other than the rape itself.
This is atypical in that most victims present in the emergency room without
bruises, lacerations or other physical injuries. Also note that sexual assault
evidence collection kits vary from state to state.

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Two videos are shown during this presentation: the first, State of Art Forensic
Examination of the Adult Sexual Assault Victim depicts a forensic examination
of a female victim. Because the purpose of showing this tape is to provide a clear
understanding of what a sexual assault evidence collection examination is like,
show only the portions of the tape depicting the examination. Begin the tape at
Step 1 or about four minutes into the tape. Show the next 14 minutes and stop
the tape before Dr. Brown examines the wet prep slide under the microscope.
The second video, Sexual Assault Care: Sexual Assault the Health Care
Response, is used to show prosecutors the sexual assault evidence collection
examination of a male victim. (The same procedures are followed for an
examination of a male victim or defendant.) Begin about 41 minutes into the tape,
after a yellow balloon is inserted into the female victims vaginal vault. Play the
tape for about two minutes. Stop the tape before the physician swabs the male
victims mouth.
To order a video of the adult female victim, State of Art Forensic
Examination of the Adult Sexual Assault Victim, contact:
Dr. Randall L. Brown
Medical Director
STOP Rape Crisis Center
District Attorneys Office
233 St. Ferdinand Street
Baton Rouge, LA 70802
Phone: (225) 389-3456
Fax: (225) 389-5685
Email: jwood@ebrda.org
Cost: None

To order the 53 minute Swiss video, Sexual Assault Care: Sexual


Assault the Health Care Response contact:
Institute of Legal Medicine, University of Bern
Buhlstrasse, 20, CH-3012 Bern
SWITZERLAND
Phone: (41)(31) 631-8412
Fax: (41)(31)631-3833
Email: dna@irm.unibe.ch
Cost: approximately $90.00 U.S.
104
Request the medical version #ISBN-3-95-21547-0-9.
This video
presents forensic examinations of both a male and female victim.

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Debriefing from the State of Art Forensic Examination of the Adult Sexual
Assault Victim Video. Ask participants:
1. Reactions to seeing the film.
2. What about this examination was good/bad from the prosecutors
point of view? List the responses on a flip chart.
3. Discuss the bad points.
4. Assume you are the defense attorney. How would you challenge
this examination?
5. From the prosecutors point of view, what did you like/dislike
about the doctors interviewing technique?

Colposcope Slides and Fact Patterns: The S.A.F.E. Presenter should utilize
slides from other presentations or her own or others practice to carefully illustrate
what a colposcope is and what it can show under magnification. This presentation
should give meaning to terms such as posterior fourchette discussed under
medical terminology in Part I of this unit and teach prosecutors how to use this
resource in court.

How to develop a S.A.F.E. program in your community: To develop a Sexual


Assault Forensic Examiner Program in your community, contact:
o Office of Victims of Crime, Training and Technical Project at (800) 6276872. The Office of Victims of Crime offers a one-day technical assistance
program to any community that wants to develop a Sexual Assault Forensic
Examiner site program; or
o Contact Linda Ledray, Ph.D., R.N., F.A.A.N. at the Sexual Assault Resource
Service, Minneapolis, MN, (612) 347-5832.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume I, Tab 6, Sexual Assault Forensic Examiners, S.A.N.E. and
Medical Evidence.

12:40-1:40

Lunch

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INTRODUCTION TO THE SEXUAL


ASSAULT FORENSIC EXAMINER ROLE
Donna A. Gaffney, RN, DNSc, FAAN
The Role: The sexual assault examiner is a specially trained nurse or physician
who provides comprehensive treatment to survivors of sexual violence. This professional
is not merely a technician who collects evidence, but a knowledgeable and compassionate
health care provider who understands every aspect of the victims experience. The sexual
assault examiners skillful assessment techniques, thorough understanding of the
dynamics of rape and the mechanics of injury provide a solid foundation for accurate
evaluation of injury. Although this role prioritizes the importance of the victims
treatment and recovery, sexual assault examiners also recognize the importance of
objective documentation and the need to provide testimony based on their professional
expertise.
The Educational Preparation: The sexual assault examiner is well prepared in
medical and forensic sciences as well as the legal aspects of sexual assault. The first
training programs were developed over twenty years ago by professional nurses. It is
important to note that information relevant to the assessment and treatment of sexual
assault victims and the collection of evidence is generally not included in basic nursing
and medical education curricula. Today there are accepted educational standards which
guide the structure and information contained in sexual assault examiner courses.
Programs must be a minimum of 40 hours and grounded in the most current research and
theories in the field. There are also requirements for clinical skill development, ongoing
education and supervision. Professionals working with child survivors must complete an
additional 40 hour course. New Jersey, Texas and Maryland have mandated their own
educational criteria for any professional who practices as a sexual assault examiner in
their states.
TITLES, ABBREVIATIONS AND ACRONYMS:
S. A. N. E.
Sexual Assault Nurse Examiner
S. A. R. T.
Sexual Assault Response Team
S. A. F. E.
Sexual Assault Forensic Examiner
S. A. E.
Sexual Assault Examiner
S.A.R.C.
Sexual Assault Response Clinician
S.A.R.S.
Sexual Assault Resource Service

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THE ROLE OF THE SEXUAL ASSAULT EXAMINER


A. Who can practice as a Sexual Assault Examiner?
1. A licensed professional nurse
2. An advanced practice nurse: nurse practitioner, nurse midwife
3. A licensed physician
4. Physician's Assistant (only under the supervision of a physician)
B. What Does A Sexual Assault Examiner Do?
1. Provides a comprehensive assessment/evaluation
2. Collects evidence
3. Provides treatment as needed
4. Refers for further medical evaluation and treatment
5. Provides testimony if necessary
EDUCATIONAL PREPARATION OF SEXUAL ASSAULT EXAMINERS
(Note: The curriculum content listed below was developed by Donna Gaffney for
The Assessment and Evaluation of the Adult Sexual Assault Survivor, 1995.
The course is five full days and offers 44 continuing education contact hours for
participants. Course development was funded through the New York State
Department of Health, and training was supported by the NY Division of
Criminal Justice Services.)
Clinical Forensics and Forensic Nursing
Standards of Practice, Current Forensic Issues
S.A.F.E., S.A.N.E., S.A.R.T. Programs
Rape Crisis Programs and the Role of the Advocate
Dynamics of Sexual Assault
Historical Overview
Offender and Victim Behaviors
The Mythology of Sexual Assault
Intimate Violence and Domestic Violence
The Psychological Aspects of Sexual Assault
Consent: Developmental and Cognitive Factors
Cognitive Processing of Traumatic Events, Brain Chemistry
Symptoms of Trauma, Acute Stress Disorder
PTSD and Risk Factors
Vicarious Traumatization
The Elements of The Forensic Interview and Therapeutic Communication
Documentation of Behaviors (verbal and nonverbal)

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Mechanics of Injury and Determinants of Injury in Sexual Assault


Terminology and Mechanics
The Role of the Human Sexual Response
Factors Related to the Victim, Offender and Circumstances
Documentation of Injury
Assessment of the Sexual Assault Victim
Strategies for Taking a Comprehensive History
The Head to Toe Examination
The Pelvic Examination (speculum and bimanual)
The Male Examination
Colposcopy and Other Technology
Evidence Collection
Forensic Analysis, DNA & Challenges of Evidence Collection
Process
Steps in the Process
Chain of Custody
The Rape Evidence Collection Kit
Treatment of Sexual Assault Survivors
Sexually Transmitted Infections
Post-Coital Contraception
HIV Prophylaxis and the Sexual Assault Survivor
Referral, Follow Up and the Long Term Effects of Sexual Assault
Interpersonal Violence: Referrals and Follow-up
Special Considerations and Needs of Different Populations
Alcohol, Drugs and Sexual Assault
The Influence of Developmental Stage and Disabilities on the
Assessment Process
Date Rape and Adolescents
The Influence of Cultural Diversity and Sexual Orientation on the
Assessment Process
Gay, Lesbian, Bisexual and Trans-Gendered Survivors
The Law and Sexual Assault
State Laws
Role of Law Enforcement
Rape Shield Law
Court Procedures
Strategies to consider when the Judge will not permit the S.A.E. to
testify as an expert
Legal and Ethical Responsibilities
Consent
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Testimony: Fact Witness and Expert Witness


Limitations of Expert Witness Testimony
May never conclude that the victim was raped, or that
injury means lack of consent
Professional Development Issues
Community Interventions
Goals of the Precepted Experience and Setting Up a Preceptorship
EVALUATION OF COMPETENCY OF SEXUAL ASSAULT EXAMINERS
1. Pretest
2. Examination/Case Study Review Post-Course
3. Competency Based Preceptorship
4. Peer Supervision
5. Continuous Evaluation/Supervision
6. Participation in Mutltidisciplinary Team Meetings
7. Continuing Education
8. Professional Memberships
9. Adherence to Standards of Practice (professional, state, organizational)
PROGRAM LOCATIONS AND VARIATIONS
1. Services delivered through an on-call program or on-staff in hospital
2. In a hospital emergency department, or room adjacent to the ED (St. LukesRoosevelt, Hospital Center, NYC)
3. In a hospital clinic
4. In a free-standing clinic or rape crisis center
5. In school-based clinics or college health services
6. In a private practice setting
7. In a Police Department (Tulsa, OK)
8. In a Prosecutor's Office (Monmouth County, NJ)
9. Through a Visiting Nurses Service (Westchester County, NY)
REFERENCES
American Nurses Association (1997) The Scope and Standards of Forensic
Nursing Practice. ANA: Washington, DC.
Gaffney, Donna. (1995) The Assessment and Evaluation of the Adult Sexual
Assault Survivor. (Unpublished curriculum and resource manual).
Gaffney, D. (1997) Community Based Sexual Assault Intervention Programs.
Sexual Assault Reports, 1 (September)
Gaffney, D. (1999) Educating Clinicians: The Case for Scholarship and Science.
At-Risk Children and Families. Vol. 2, No. 5.
International Association of Forensic Nurses. (1996) Sexual Assault Nurse
Examiner Standards of Practice. IAFN: Pitman, NJ.
International Association of Forensic Nurses. (1998) Educational Standards for
Sexual Assault Nurse Examiner Training Programs. IAFN: Pitman, NJ
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Ledray, Linda E & Arndt S. (1994) Examining the Sexual Assault Victim;
A New Model for Nursing Care. Journal of Psychosocial Nursing &
Mental Health Services. 32 (2): 7-12.

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HOW AN EXPERT CAN HELP YOU SUPPORT THE COMPLAINANT


AND PROVE YOUR CASE MORE EFFECTIVELY
Faculty Needed:

Prosecutor Presenter(s)
Victim Impact Expert

Format for Unit:

Lecture

Time Allotted:

Day II: 1:40 to 2:45 p.m.


1hour, 5 minutes

Content Overview How to Use an Expert to Prove Your Case More Effectively:
In order to successfully prosecute sexual assault cases, prosecutors often need to combat
prevalent rape myths and victim blaming, and explain victims counterintuitive behavior.
Expert witnesses can help the prosecutor explain the victims behavior and prove the
element of lack of consent. This section focuses primarily on the use of psychological
experts in sexual assault cases. We discuss key terminology, ways in which
psychological experts can testify, and ways in which prosecutors can use an expert in a
sexual assault case even if the expert will not be testifying. This section also addresses
legal trends across the country with respect to the admissibility of expert testimony.
This Faculty Manual Contains:

Lecture Outline: How an Expert Can Help You Support the Complainant and
Make Your Case More Effectively begins on page 63.
A Prosecutors Checklist: Using a Psychological Expert in a Sexual Assault
Case begins on page 74.
Tips on Working with a Medical Expert in a Sexual Assault Case begins on
page 81.
Experts Checklist begins on page 84.

Visuals for Unit:

Slides are in Appendix 12, Expert Witnesses.

The Participants Binder Contains:

Copies of all slides for this unit at Tab 8, page 8-29.


How an Expert Can Help You Support the Complainant and Make Your Case
More Effectively at Tab 8, page 8-36.
A Prosecutors Checklist: Using a Psychological Expert in a Sexual Assault
Case at Tab 8, page 8-47.
Tips on Working with a Medical Expert in a Sexual Assault Case at Tab 8, page
8-54.

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Experts Checklist at Tab 8, page 8-57.


Local Law Case Annotations at Tab 8, page 8-63.

Special Instructions for the Faculty:

Tailor this lecture to your states case law: This material addresses general
issues related to expert testimony in sexual assault cases. The presentation should
be tailored to and supplemented with the local law and practice from the
jurisdiction where the training takes place to make it more useful for the
participants. Certain sections may not apply, depending on how developed the
states law is on the subject. The presenter will need to make the necessary
adjustments after reviewing the states law where the program is being given.

Note on four checklists: These materials include four checklists for prosecutors
to use in interviewing and preparing psychological and medical expert witnesses
for a sexual assault trial. The first three of these checklists are for the prosecutor.
The fourth, Experts Checklist: Courtroom Testimony in Sexual Assault Cases,
is to be given to the expert to help him or her to prepare.

Refer Participants to the Case Annotations Included in the Participants


Binder: The Participants Binder contains a collection of case annotations related
to the admissibility of expert witness testimony and issues of confidentiality and
privilege. These annotations come from selected states throughout the country
where the National Judicial Education Program has presented its Understanding
Sexual Violence curriculum to judges. The document also contains annotations of
more recent cases that address these issues.

Give the Attorneys Caveat: This is a rapidly changing area of the law and each
jurisdiction is different. You need to carefully review your own states statutes
and case law before you attempt to introduce expert testimony in a sexual assault
case.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume I, Tab 3, Victim Impact, and Expert Testimony in Sexual
Assault Cases: Selected Case Law from Around the Country which is in Volume
I, Tab 7, Expert Witnesses.

2:45-3:00

Break

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How an Expert Can Help You Support the Complainant


and Prove Your Case More Effectively
Presenters Outline
I. Using a Psychological Expert in a Sexual Assault Case
A. Deciding Whether to Use a Psychological Expert
Women who claim they were sexually assaulted are often viewed with
skepticism. Challenges to a sexual assault victims credibility are
common in the courtroom and in the community.1 Sexual assault victims
also often act in ways that are counterintuitive. Although the elements of
resistance and corroboration have been removed from state statutes, many
jurors still believe that a sexual assault victim should fight back and
immediately report the incident. Stereotypes and myths about rape cause
many to shift their focus from the rapist to the victim. In addition, where
the defense is consent, prosecutors often need help rebutting the he said
she said argument. For these reasons, expert testimony is often useful in
sexual assault cases to explain the victims counterintuitive behavior, to
explain the complexities of sexual assault, and to respond to the
defendants claim that the incident was consensual.
B. Key Issues Where Expert Testimony Might be Helpful2
Prosecutors across the country have used experts in sexual assault cases to
address several key issues. Experts can address such issues as:

Why victims delay reporting;


Why victims blame themselves;
Why victims minimize the events and their injuries;
Why victims have incomplete or inconsistent memories of the
incident;
Why victims do not always physically resist or escape;
Frozen fright;
1

Laura E. Boeschen, Bruce D. Sales, & Mary P. Koss, Rape Trauma Experts in the Courtroom, 4
PSYCHOLOGY, PUB. POLY & LAW 414 (1998).
2
This section was adapted from The Practical Use of Expert Witnesses in Cases Involving Violence
Against Women, by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women
Conference, Baton Rouge, Louisiana, April 13, 2000.

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Why victims may continue contact with the perpetrator, especially


if they had a previous relationship based on trust;
The victims behavior as compared with behavior of other sexual
assault victims;
The victims lack of physical injury;
The victims demeanor after the assault;
Posttraumatic Stress Disorder and other common psychological
reactions to trauma; and,
Why victims recant.
NOTE: An expert should not testify about a particular witnesss
credibility or whether an assault did or did not happen. Experts should
never testify as to whether they believe the victim is telling the truth
or whether they believe the victim was sexually assaulted. This type
of testimony almost always results in a mistrial of the case or the reversal
of a conviction on appeal.
II. Important Terminology
There are several key terms which prosecutors must understand in dealing
with sexual assault victims and preparing experts to testify in these cases.
Unfortunately, there is a great deal of confusion about these terms, and
courts have used the terms rather indiscriminately and in certain
circumstances, incorrectly, when ruling on the admissibility of expert
testimony in sexual assault trials.
A. Rape Trauma Syndrome (RTS)

The phrase was originally used by Ann Burgess and Lynda Holmstrom
to describe common reactions they observed in rape victims seen in
the emergency room.3
RTS refers to the victims stages of recovery, not symptoms.
These stages were defined to aid in the therapeutic process, but the
terminology was used in courts to explain common reactions to rape to
the jury.
RTS is not a psychological diagnosis that is recognized in the field.
RTS is not included in the Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV).4
RTS is more vulnerable to attack because of the research upon which it
is based.

Boeschen, supra note 1, at 416.


AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS
(4th ed. 1994).
4

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RTS should NOT be used by experts in court.


However, many legal opinions and legal articles still use RTS
terminology. These materials must be read carefully before drawing
conclusions about the admissibility of expert testimony.
Courts are also still admitting expert testimony about RTS, reflecting
this confusion.
o
See, e.g., State v. Kinney, No. 99-122 (Vt. Oct. 13, 2000) (case
still subject to motions for reargument and formal revision) (rape
trauma syndrome is professionally recognized as a type of
posttraumatic stress disorder).
B. Posttraumatic Stress Disorder (PTSD)

PTSD is the primary trauma-related diagnosis included in the DSMIV.


It is an AXIS I diagnosis (Clinical Disorders; Other Conditions that
May Be a Focus of Clinical Attention) in the DSM-IV.
Diagnostic criteria include exposure to a traumatic event and certain
associated reactions and symptoms.
Duration of symptoms is more than one month.
Originally developed to address the psychological trauma of Vietnam
veterans.5
PTSD is the preferred diagnosis for expert testimony.
PTSD does not include all of the symptoms (such as depression,
anxiety, anger, guilt, humiliation, sexual dysfunction, and disruption of
core belief systems) that are also common among sexual assault
victims.6
The expert needs to clarify that sexual assault victims often suffer
from symptoms other than PTSD.
Experts also need to explain that not all sexual assault victims suffer
from PTSD.
Experts should use any other accepted diagnoses that apply (such as
depression).
PTSD may be caused by a trauma other than sexual assault.
Many victims suffer from multiple traumas. Therefore, it is difficult to
say with certainty that a specific trauma caused the PTSD reaction.7
An expert can try to show the symptoms cause with a thorough
assessment of the temporal sequence of events and symptoms and a
detailed description of the victims intrusive symptoms.8

Boeschen, supra note 1, at 417.


Id., at 418.
7
Id., at 419.
8
Id.
6

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Symptoms may overlap with the criteria for several other clinical
disorders.9
Courts often confuse this diagnosis with RTS.
Testimony about PTSD has been admitted in many courts.
o See, e.g., State v. Liddell, 211 Mont. 180, 685 P.2d 918 (1984)
(expert testimony from a psychiatric nurse admitted to aid the jury
in determining whether there was consent).
o Lane v. Commonwealth, No. 2161-98-2 (Va. App. Sept. 28, 1999)
(expert testimony about the victims PTSD diagnosis being
consistent with sexual abuse permitted since the expert did not
opine that the victim had been abused).
Testimony is deemed admissible by statute in at least one state.
o See ILL. REV. STAT. Ch. 5 115-7.2. In a prosecution for an
illegal sexual act perpetrated upon a victim, testimony by an
expert, qualified by the court relating to any recognized and
accepted form of post-traumatic stress syndrome shall be
admissible as evidence. (Emphasis added).
C. Acute Stress Disorder (ASD)

DSM-IV diagnosis for symptoms that last a minimum of two days and
a maximum of four weeks.
Diagnosis used in the immediate aftermath of a trauma.
ASD is used to describe the PTSD-like intrusive thoughts and
avoidance symptoms during the first thirty days of symptoms.
If symptoms persist for more than thirty days, the PTSD diagnosis is
used.

III. Levels of Expert Testimony10


A. Level 1: Testimony About Specific Behaviors of Sexual Assault
Victims That Are Described as Unusual by the Defense

Expert testimony is used to respond to the defendants claim that the


victims behavior was not consistent with that of a sexual assault
victim. The defendant may have raised the questions through crossexamination of the victim or in the defendants case-in-chief.
The defense attorney has introduced testimony about the victims
unusual behavior, such as:
o The victims delay in reporting;

Id., at 420.
This section is adapted from Boeschen, supra note 1, at 424-428.

10

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o The victims failure to recall details or omission of certain aspects


of the sexual assault;
o The victims inability to immediately tell the police the assailants
name;
o The victims apparent lack of emotion following the assault;
o The victims denial of the sexual assault; or,
o The victims memory loss about events preceding or during the
assault.
The expert is used to explain that these behaviors are not unusual in a
sexual assault victim.
The testimony only provides general information to jurors in an effort
to combat the prevalent myths and stereotypes about sexual assault
victims.
See, e.g., State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (Wis.
1990) (counselor from the local rape crisis shelter was permitted to
testify, over the defendants objection, about the general behavior of
sexual assault victims).
B. Level 2: Testimony About Common Reactions to Sexual Assault
and the General Diagnostic Criteria of PTSD or Rape Trauma

This level of testimony involves a discussion of common post-assault


behaviors and experiences, and includes a description of the criteria
for PTSD or the effects of rape trauma.
The expert does not examine the victim and does not discuss the
specific victims behavior or symptoms.
The testimony is kept at a general level.
The expert should do more than just describe PTSD symptoms. The
expert should also explain other empirically validated, common postassault behaviors which are not included in the PTSD diagnosis (such
as sexual dysfunction or depression).
The expert should not use RTS testimony.
See, e.g., State v. Kinney, No. 99-122 (Vt. Oct. 13, 2000) (case still
subject to motions for reargument and formal revision) (expert was
allowed to testify about behaviors and symptoms experienced by
trauma victims).
C. Level 3: Expert Gives an Opinion About the Consistency of a
Victims Behavior or Symptoms with PTSD or Rape Trauma

Here the expert is allowed to discuss whether the victims symptoms


are consistent with the symptom criteria for PTSD or other
trauma-related diagnoses.

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The expert does not examine or diagnose the victim or claim that the
victim suffers from PTSD or any other diagnosis.
The expert does not imply that the victim is being truthful in
describing her symptoms.
The expert can point out the consistencies between the victims
reported symptoms and common post-assault responses.
The expert should not use RTS testimony.
There are numerous examples of cases in which this type of evidence
was held to be admissible. See, e.g.:
o State v. Rogers, 992 P.2d 229 (Mont. 1999) (Emergency
Department physician was allowed to testify that the victims
emotional state at the time of the examination was consistent with
that of other rape victims he had examined).
o State v. Doporto, 935 P.2d 484 (Utah 1997) (an expert may testify
that a victims behavior was consistent with symptoms that might
be exhibited by one who has been sexually abused).
D. Level 4: The Expert Testifies that the Victim Suffers From PTSD

At this level, the expert describes the victims symptoms and states
that the victim meets the criteria for a clinical diagnosis of PTSD.
The expert would probably need to examine the victim to make the
diagnosis.
The expert does not testify that the victim was raped.
The expert acknowledges that other forms of trauma may cause PTSD.
You can anticipate a defense objection that this testimony improperly
bolsters the victims credibility.
The expert should not use RTS testimony.
See, e.g., State v. Allewalt, 517 A.2d 741 (Md. 1986) (the expert
examined the victim and testified that he believed she suffered from
PTSD).
E. Level 5: The Expert Opinion Goes Beyond a Diagnosis
(The Danger Zone!)

At this level, the expert testifies that the victim is telling the truth or
that the victim was raped.
This almost guarantees a mistrial or the reversal of any conviction on
appeal.
DO NOT allow your experts to cross this line.
It clearly invades the jurys province and bears directly on the victims
credibility.
There are numerous examples here as well:

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o See, e.g., Nichols v. State, 177 Ga. App. 689, 340 S.E.2d 654
(1986) (the defendants conviction was reversed because the
Emergency Department physician stated that, in his opinion, the
victim was raped).
o Smith v. State, 259 Ga. 135, 377 S.E.2d 158 (1989) (trial court
erred in allowing the states child abuse expert to testify that, in her
opinion, the victim told the truth in her allegations against the
defendant).
IV. Examples Where Expert Testimony Was Helpful and Where
It Was Not
NOTE to faculty: At this point in the presentation, you should call on the
victim impact expert who presented in the earlier part of the program, as
well as the prosecutor faculty members and the prosecutors in the
audience, for a short discussion about cases in which the victim impact
presenter testified as an expert or the prosecutors used expert witnesses.
Quickly address the following topics:

Have the expert who addresses victim impact during the training give
examples of cases in which s/he has testified where s/he felt that
her/his testimony was helpful and where it was not.
Have the prosecutors who are members of the faculty and who are in
the audience describe cases in which they felt they used an expert
successfully and where they felt the testimony did not help their case.
Discuss why the testimony helped in certain cases and why it did not
in others.
See if you can discern a pattern.

V. Other Types of Expert Witnesses

A witness does not necessarily have to be a clinical psychologist or


psychiatrist in order to testify as an expert in a sexual assault trial.
Courts have admitted testimony from other witnesses, such as:
o The person in charge of a police department Victim Services Unit
was allowed to testify as an expert on victimology in People v.
Hampton, 746 P.2d 947 (Colo. 1987).
o A counselor from a local rape crisis team was allowed to testify
about the general behavior of sexual assault victims in State v.
DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (Wis. 1990).
o A counselor from a rape crisis center was qualified as an expert
and testified about her observations of the victim, about the
victims fear of retaliation, and the victims flat affect in State v.
Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (Wis. 1988).

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Be sure to check the case law in your own jurisdiction to determine the
boundaries of permissible testimony and who can be qualified as an
expert.

VI. Lay Witnesses to Establish Trauma Response

Courts have even permitted lay witnesses to testify about a victims


post-assault behavior or symptoms. Examples include:
o A counselor from a police Victim Services Unit was allowed to
testify as a lay witness regarding the victims demeanor the day
she reported the assault, and to express an opinion that the victims
reactions were typical of victims of sexual assault, in Farley v.
People, 746 P.2d 956 (Colo. 1987).
o In Commonwealth v. Pickford, 370 Pa. Super. 444, 536 A.2d 1348
(1987), the court refused to allow expert testimony about rape
trauma syndrome. It did, however, allow lay testimony regarding
the victims post-rape behavior.
o In State v. Hickmott, Case No. 98 CA 01 (Ohio App. Feb. 5, 1999),
the court allowed the victim to testify that she suffered from PTSD,
finding that her testimony was highly relevant and probative to the
issue of whether she consented.
Once again, check your local law on this issue.

VII. Issues Related to Confidentiality and Privilege


Issues related to confidentiality and privilege are very important in sexual
assault cases.

A. Privileged Communication with the Treating Therapist

This issue is particularly relevant when the prosecutor decides to call


the treating therapist as an expert witness.
Communication within the therapeutic relationship is privileged.
Some states have extended the privilege to rape crisis center
counselors.
o See, e.g., COLO. REV. STAT. 13-70-107(1)(k) (a victims advocate
shall not be examined as to any communication made to such
victims advocateby a victim of sexual assaultin person or
through the media of written records or reports without the consent
of the victim).
o See also, Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290
(1992), cert. denied, 504 U.S. 977 (1992) (the statutory privilege
protects communication with a sexual assault counselor).

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The privilege may be waived if you call the treating therapist as a


witness.
Think carefully about the implications of calling a treating therapist as
an expert witness.
It is often best to use an expert who has no connection with the victim
to avoid conflicts of interest and protect the victims therapeutic
relationship.
Treating therapists are also more likely to cross the line and talk about
the victims truthfulness!
If you do need to call the treating therapist, file a motion asking the
court to limit the questioning to the relevant time period or topic.

B. Confidentiality of Records

Defense attorneys often seek the victims counseling records, even if


the treating therapist is not testifying.
Confidentiality of rape crisis center records is protected by statute in
some states and by case law in others.
o See, e.g., COLO. REV. STAT. 13-70-107(1)(k) (a victims advocate
shall not be examined as to any communication made to such
victims advocateby a victim of sexual assaultin person or
through the media of written records or reports without the consent
of the victim).
o See also, Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290
(1992), cert. denied, 504 U.S. 977 (1992) (the statutory privilege
must extend to the subpoena of records and other documents
developed throughout the counseling relationship).
o See, also, State v. J.G., 261 N.J. Super. 409, 619 A.2d 232 (1993)
(The defendant sexually assaulted his children. He sought access
to counseling records for his wife, who he had not sexually abused,
as well as for his children, who were his victims. The court held
that the victim-counselor privilege was broad enough to encompass
both direct and indirect victims of crime, so the defendants
request to discover counseling records for his wife and children
was denied).
Courts have also denied defendants requests for access to other
counseling records.
o See, e.g., State v. Maniero, 189 Wis. 2d 80, 525 N.W.2d 304 (Wis.
App. 1994), review denied, 531 N.W.2d 326 (Wis. 1995) (the
defendant was not entitled to review the victims psychiatric
records where the state did not introduce expert testimony about
the victims psychiatric condition, nor did it rely on any of her
psychiatric records).
However, some courts have held that a sexual assault victims rape

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crisis center or mental health records are discoverable.


o See, e.g., Commonwealth v. Neumyer, 432 Mass. 23, 731 N.E.2d
1053 (2000) (the defendants proffer was sufficient to establish the
necessary relevancy and materiality of the victims rape crisis
center records to warrant an in camera review of the records,
despite the statutory privilege).
o See also, State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989)
(the trial court committed reversible error in denying the defendant
access to the victims treatment records).
These privileges may also be waived, so be careful!
o See, e.g., Commonwealth v. Davis, 437 Pa. Super. 471, 650 A.2d
452 (1994), affd, 674 A.2d 214 (Pa. 1996) (the privilege was
waived when the complainant and her family allowed the
prosecutor to have access to the records).

VIII. Using an Expert Who You Will Not Call to Testify


Even if you are not planning to call an expert to testify at trial, there are
many ways you can use an expert to help you prepare for trial and to help
support the victim through the process. Some examples are:

Use your expert, your Victim-Witness staff, the local rape crisis center
counselor or the victims treating therapist to help support and prepare
the victim for trial.
Use the expert to help you follow the trauma.11 PTSD and other
trauma-related symptoms help demonstrate that the sexual activity was
not consensual.
o See, Rape Trauma Symptom Rating Scale in your Resources Book
in Vol. I, Tab 3, Victim Impact.
Use what you learned from the expert to help you prepare your voir
dire questions, your direct examination of the victim and your crossexamination of the defendant.
If the defendant is planning to call an expert, use your expert to help
you prepare your cross-examination of the defense expert, by
suggesting areas of inquiry or specific questions. Have your expert
review the defense experts curriculum vitae and published materials.
Ask your expert to find out about the defense expert by contacting
professional organizations or other sources to provide you with
additional information.

IX. Other Issues Related to the Admissibility of Expert Testimony

11

SCOTT WYATT & DONALD G. LINTON, ACQUAINTANCE RAPE INVESTIGATION AND PROSECUTION 54-58
(1999)

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The case annotations contained in Expert Testimony in Sexual Assault


Cases: Selected Case Law from Around the Country, provide numerous
examples of cases in which courts found expert testimony admissible and
cases in which the courts held that the evidence was not admissible. This
section mentions a few other issues that emerge in these cases.
A. Expert Testimony about False Reporting

Some appellate courts have held that expert testimony about the
incidence of false reporting in sexual assault cases is impermissible.
o State v. Kinney, No. 99-122 (Vt. Oct. 13, 2000) (case still subject
to motions for reargument and formal revision) (the experts
testimony about the rate of false reporting was improperly
admitted, but did not constitute reversible error).
o State v. Brodniak, 221 Mont. 212, 718 P.2d 322 (1986) (The
experts testimony about malingering and the statistical percentage
of false accusations was improper comment on the complainants
credibility and should not have been admitted. In light of the
overwhelming evidence of the defendants guilt, however, the error
was harmless).
Unless your courts specifically permit this testimony, it would be wise
to avoid it.
If the defendant attempts to introduce this type of testimony, object
strenuously.
B. Expert Testimony that the Defendant Does Not Fit the Profile of
a Sex Offender
Several appellate decisions address the issue of the admissibility of
expert testimony proffered by the defendant in which the expert plans
to testify that the defendant does not fit the profile of a sex offender.
There is no validity to the concept that there is a reliable profile of a
sex offender.
Nevertheless, some courts have admitted this evidence or found that it
was relevant:
o State v. Miller, 709 P.2d 350 (Utah 1985) (The defendant proffered
expert testimony to describe the typical psychological profile of
individuals who sexually abuse children. The trial court refused to
permit it. On appeal the court held that the testimony would have
been relevant, but that the trial court did not err in excluding the
evidence under the provisions of Utah R. Evid. 403.).
o State v. Cavallo, 88 N.J. 508, 443 A.2d 1020 (1982) (One of the
defendants sought to offer expert testimony that he did not have
the psychological traits of a rapist. The appellate court held that

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the experts testimony made it more likely than otherwise that the
defendant did not rape the victim. Consequently, the proffered
testimony was relevant.).
o State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Wis.
App. 1998) (The defendant proffered expert testimony that he did
not show any evidence of a diagnosable sexual disorder and,
absent a diagnosable disorder, it was unlikely that such a person
would molest a child. The trial court refused to permit the
testimony and the appellate court reversed, finding that the experts
testimony would have assisted the jury in determining the
likelihood that the defendant committed the charged offense.).
You should strenuously object to the introduction of this type of
evidence. Reputable researchers in this field do not accept the concept
of a profile.

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A Prosecutors Checklist:
Using a Psychological Expert in a Sexual Assault Case
Use this checklist to prepare your expert for trial.
I. Preparing Your Expert1
A. Meet with the expert far in advance of the scheduled trial.
Before any expert testifies at the trial, you should meet with the expert and establish
the scope and breadth of the experts testimony. Interview your expert as soon as you
possibly can. In this pre-trial meeting, discuss the following with the expert:

The types of questions the expert will be asked to establish the experts
credentials and expertise;
The boundaries of the experts testimony;
The types of questions the expert will be asked on direct examination;
Areas the expert will not be asked about;
Areas or types of testimony that the expert should specifically avoid;
How the expert should prepare for cross-examination; and,
Questions the expert can expect from opposing counsel.

B. Review the experts credentials and expertise.


You need to have sufficient information about an individual to offer him or her as an
expert witness. If you do not lay the proper foundation, the court will not qualify
your witness as an expert. If the witness is not qualified as an expert, the witness
cannot offer opinion testimony. During your preliminary meetings, ask the expert the
following types of questions so you will have the information you need to lay the
foundation for the experts testimony at trial:
Educational/Professional Background:

Education: university, graduate school, particular classes in area of


expertise;
Degrees held;
Additional class work or training in the field of expertise;
Articles written on topics within the area of expertise;

This section was adapted in part from The Practical Use of Expert Witnesses in Cases Involving Violence
Against Women, by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women
Conference, Baton Rouge, Louisiana, April 13, 2000.

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Publication titles, journals and dates the articles were published;


Whether the articles were the subject of peer review;
Teaching experience;
Subjects taught;
Teaching location;
Length of teaching experience;
Memberships in any professional organizations; and
Types of professional organizations (invitation only or open to any
interested person).

Area of Practice:
Type of professional practice;
Length of time in professional practice;
Number of clients treated;
Number of sexual assault victims treated;
Define Rape-Related Posttraumatic Stress Disorder; and
Number of clients treated who suffer from Rape-Related Posttraumatic
Stress Disorder.
Previous Expert Testimony:
Any previous courtroom testimony;
If so, explain:
o when;
o in which courts (state or Federal);
o attorneys names;
o facts of those cases;
o whether they were criminal or civil cases;
o which side called the expert as a witness; and
o whether your expert qualified as an expert in these other cases.
In any case where your expert has testified, it would be wise to obtain
a transcript of the expert's testimony.
Find out whether any court ever refused to qualify your witness as an
expert.
C. You and your expert should talk to others who have testified as expert
witnesses in court.
If an expert has not testified before, the prospect can be very intimidating. You and
your expert should contact other experts who have testified and ask them about their
experiences, especially during cross-examination. Contact other prosecutors,
professional associations, local state sexual assault coalitions or local rape crisis
programs to get names of others who have testified.

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D. Prepare your expert for the courtroom experience.


Tell your expert to use plain language while testifying. Jurors do not have the benefit
of the experts education and it is critical that the jurors understand what the expert is
saying. If the expert has to use technical terms, remind the expert to explain the
terms meaning in plain English before continuing his or her testimony.
During your pre-trial meeting, talk to your expert about the general practices of the
opposing attorney and judge. If you can, tell the expert about defense counsels
demeanor during cross-examination. Also provide the expert with the opportunity to
observe the courtroom before the expert is scheduled to testify. If time permits,
conduct a practice direct examination and cross-examination with the expert.
Experts may feel that they do not need to prepare as carefully if they have testified
before. It is crucially important for you to explain that each case is different, as is
each attorney. You need to prepare each expert witness regardless of the number of
times that witness has testified in the past.

E. Use your expert to help you prepare for trial.

Use what you have learned from your expert to craft questions for voir dire, to plan
your direct examination of the victim and to plan your cross-examination of the
defendant.

Find out whether the defense attorney intends to call an expert and get

that experts name. If the defense is planning on calling an expert witness, use your
expert to help you prepare for cross-examination. You and your expert should be
familiar with the defense experts background, credentials and written materials.
Obtain a copy of the defense experts curriculum vitae and review it with your expert.
In addition, get transcripts of the defense experts prior testimony and copies of any
publications. Ask your expert to read the defense experts articles and suggest areas

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for cross-examination. Also ask your expert to find out about the defense expert by
contacting professional organizations or other sources to provide additional
background information.

F. Prepare your expert to discuss his or her fee while testifying.


If your expert is charging a fee for his or her testimony, discuss the fee ahead of time with your expert. You may want to ask
your expert about the fee during direct examination to avoid difficult cross-examination on the issue. If not, warn the expert to
expect to be asked about the fee in cross-examination. The expert must be prepared to explain his or her fee in matter-of-fact
terms, without getting defensive.

G. Explain what you need to establish in court and define key legal terminology.
Tell your expert exactly what information you need to have developed during direct
testimony. After you have reviewed your questions with your expert, ask if you have
missed any key areas of inquiry. Find out if there are other specific questions you
should ask the expert at trial. Explain that you would appreciate any insight that will
strengthen your case or help you avoid surprises. Use your expert to teach you about
your case.
In addition, explain the key phrases or terminology you will use or need your expert
to use while testifying. Requirements vary from state to state about what key phrases
are necessary before an expert can state an opinion. Explain the legal significance of
such legal phrases as within a reasonable degree of medical certainty and
consistent with. Also explain the distinction between something that is possible
or probable.
H. Make sure the experts understand the form their testimony will take.
Prosecutors should be sure to explain to their experts whether the experts will be
asked to provide background information about common reactions of sexual assault
victims, opinion testimony, or testimony based on hypothetical questions. The type
of permissible expert testimony varies widely from jurisdiction to jurisdiction and it is
important that the expert understand the permissible parameters before testifying.
Each type is summarized below:

Testimony to provide background information


Here, experts can testify about general relevant principles. The judge or jury
is then left to apply the principles to the facts of the case. Background

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information about such common characteristics as delayed reporting, selfblame, lack of physical injury, fragmented memories, recanting and
minimization helps the judge or jury understand key issues of the case and
allows them to choose whether to apply what they have learned in deciding
the case before them.

Opinion testimony
In general, experts can give opinions where lay witnesses cannot. Before an
expert can express an opinion, the expert must possess a reasonable certainty
about the stated opinion. The experts opinion should not be based on
guesswork or speculation, but the expert need not be absolutely certain.
Different jurisdictions use different standards to determine the admissibility of
expert testimony. Be sure you are familiar with your states requirements and
explain them to your expert during your pre-trial meetings.
Remember experts should not give opinions about whether the victim in
the particular case is telling the truth or has been sexually assaulted.

Testimony based on hypothetical questions

Traditionally, many states forced experts to express their opinions only in


response to a hypothetical form of questioning.

Today, these types of

questions are not used as often because they can be cumbersome and
confusing. When used, these questions may be offered by either side, and
may sound something like this:

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Please assume the following facts (A set of facts will be given that may
mirror the facts of the case.) In your opinion, are these facts consistent or
inconsistent with someone who has experienced sexual assault?

Warn your expert that if the defense attorney uses a hypothetical question
during cross-examination at trial, the expert should listen very carefully to the
question and articulate all distinctions the expert perceives between the
hypothetical question and your set of facts.

I. Review the relevant research and literature.


There has been a great deal of research over the last several years about the
psychological sequelae of rape victimization and the traumatic response. Recent
advances in neurobiology demonstrate that traumatic memories are actually stored
and retrieved differently than non-traumatic memories. Be sure that both you and
your expert are familiar with and have reviewed the current research in this area
before the expert testifies.
J. Respect confidentiality and privileges, and determine if there is a conflict of
interest in the case.
An expert witness should be cautious about testifying about a patient in a criminal
case. The dangers of violating confidentiality and privileged communication are high
under these circumstances. If you do decide to ask a treating therapist to testify about
a former or current patient, you must make sure that the patient has been fully
informed about the confidentiality and privilege issues that may arise as a result of the
therapists testimony. This issue should be discussed in detail with the patient and the
therapist. You should also file a motion asking the court to limit questioning of the
therapist to the relevant time frame or topic. You need to carefully think through the
implications of using a treating therapist as a witness in a criminal trial. It is often
best to use an expert who has no connection to the case, so conflicts of interest can be
avoided and the victims therapeutic relationship can be protected.
Another difficult area that arises in sexual assault case is the confidentiality of the
victims therapists records. Defense attorneys often try to gain access to the victims

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records. Victims therapy records may have information, unrelated to their sexual
assault, which they do not want disclosed. If the therapist is associated with a
hospital or mental health center, the therapists Risk Management Department may
become involved with any request for the facilitys records. Each states law varies
on this issue, so you need to be familiar with your states privilege and confidentiality
laws. It is important that you do what you can to protect the victims privacy and the
confidentiality of her therapy records.

K. Caution your expert to be careful when using statistics.


Because statistics can be so persuasive and they are commonly attacked on cross-examination, it is important that experts use
accurate, reliable figures when testifying. The expert should be prepared to discuss where he or she obtained the statistics and
how the results were determined. Experts should also cite statistics from the original source (professional journal, original
research, government publication, etc.), NOT from a magazine or newspaper article.

II. Courtroom Logistics and Scheduling


Tell your expert where to park ahead of time. If possible, have someone from your
office meet the expert at the courthouse door and bring the expert to the courtroom.
If no one is available, give clear and specific directions from the courthouse door to
the courtroom. Explain to the expert what he or she should do upon arrival (wait
outside the courtroom or come inside and sit down).
Explain that trials are often continued and schedules are often delayed. Tell the
expert that you will make every effort to provide him or her with advance warning of
any delays and accommodate the experts schedule, but that it is not always possible.
Explain that the judge, not you, controls the court calendar. Keep in touch with your
expert.
III. Qualifying Your Expert at Trial2
When offering a witness as an expert, you must establish the witnesss qualifications
to the courts satisfaction. Usually this is accomplished by demonstrating the
witness knowledge and skill in a particular area. Some factors that the court may
consider are:

Whether the person has ever previously been qualified as an expert;


The experts employment history;

This section was adapted from The Practical Use of Expert Witnesses in Cases Involving Violence
Against Women, by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women
Conference, Baton Rouge, Louisiana, April 13, 2000.

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The experts experience in the field in which he or she is being offered as an


expert;
The experts education;
The experts professional affiliations, and positions within professional
organizations;
The experts publications in the field and professional papers presented;
Any other specialized or professional training the expert has received; and
The experts familiarity with current literature and research in the particular field.

At trial, you will ask your expert questions that cover these topics, and offer the
witness as an expert. The defense attorney then has an opportunity to question or
challenge the qualifications, or voir dire, the witness.
It is ultimately up to the judge to determine whether the person has been properly
qualified as an expert. Never assume that the judge will permit an expert to testify.

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Tips on Working with a Medical Expert


in a Sexual Assault Case
If the victim received medical attention after the assault, prosecutors frequently call
medical experts to testify at trial. These experts, either emergency room physicians, or, if
your community has a Sexual Assault Forensic Examiner (SAFE) program, the SAFE
nurse, describe their medical findings from their examination of the victim. The
following suggestions are adapted from Dr. Michael Weavers Optimizing
Physician/Nurse Role in the Criminal Justice System,1 which is included in your
Resources Book in Volume I, Tab 7, Expert Witnesses. From a physicians point of
view, these recommendations are ways in which prosecutors can make it easier for the
medical clinician to testify in a sexual assault trial.
1. Clinical Issues

Many medical schools and nursing schools do not teach students how to conduct
clinical forensic examinations.
This is changing with advent of the SAFE programs, but SAFE clinicians are not
available in all jurisdictions.
Physicians or nurses usually examine sexual assault victims many months, or
even years, before the case comes to trial. As a result, the clinicians memory
about important details, such as the patients demeanor, may have faded.
If a SAFE clinician is not available, the responsibility for sexual assault
examinations rotates from clinician to clinician. Therefore, the clinicians may
perform only a few of these examinations in any given year.
Given that so few of these cases actually go to trial, it is important to understand
that the clinician may have little experience testifying and may be very
apprehensive about doing so. 2

2. Professional Courtesy

Clinicians do not want their first contact with a prosecutor to be in the form of a
subpoena. This is a bad way to initiate contact because when clinicians receive
unexpected subpoenas, their initial reaction is often fear that they are being sued
for malpractice.3

This section is adapted from Michael Weaver, Optimizing Physician/Nurse Role in the Criminal Justice
System, National Non-Stranger Sexual Assault Symposium Proceedings Report, Denver Sexual Assault
Interagency Council (April, 2000). Michael Weaver, M.D., FACEP, is a member of the Kansas City
Sexual Assault Task Force and has lectured for the National College of District Attorneys on issues related
to sexual assault.
2
Id., at 60.
3
Id.

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It is also important to give the clinicians as much notice as possible when asking
them to testify. Clinicians are frustrated when they are asked to testify with little
advance notice. A last minute subpoena may diminish the spirit of cooperation
and damage the working relationship between the prosecutor and the clinician.
Many physicians and nurses have fixed schedules that are set months in advance.
It is often difficult to get coverage and the clinician may be forced to work
multiple shifts in a row if notice is given at the last minute.
Giving last minute notice may also produce a hostile witness who has not had
time to properly review the record or the relevant professional literature.4
Trials often have unpredictable schedules. Clinicians appreciate being scheduled
to testify either first thing in the morning or right after the lunch break to
minimize waiting time. Explain to the clinician that although you will do
everything you can do to minimize delays, the judge controls the calendar and
cases are often continued and schedules are often rearranged at the last minute.
Ask the clinician to arrive an hour early to give the clinician time to ask any
questions or review material with the prosecutor.
During re-direct, give the clinician the opportunity to clarify misconceptions that
may have arisen during cross-examination.
As a courtesy, call or write to the clinician after the trial to let the clinician know
the outcome and thank him or her for assisting with the trial.5

Checklist for Prosecutors Using Medical Experts6


1. Initial Forensic Clinician Contact

Arrange your initial meeting as soon as possible after the case begins, well
in advance of the trial date.
Avoid the use of subpoenas that are delivered without prior notice.
Telephone or visit the clinicians prior to the start of their shift.
Provide the clinician with a copy of the clinical record and the proposed
trial dates.
Establish a preferred method for contact to arrange a formal case review.

2. Formal Case Review

Schedule the meeting at least two weeks prior to the trial.


Avoid scheduling the meeting during the clinicians shift or at the end of
the shift.
Meet at the hospital.

Id.
Id., at 60-61.
6
Id., at 60-61 (adapted from Dr. Weavers Important Checklist Elements).
5

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Plan on spending an hour or two reviewing the specific details of the


hospital evaluation.
Review direct quotes and statements made for the purpose of medical
diagnosis or treatment.
Clarify the terminology used, e.g., 6 oclock position, posterior fourchette,
and fossa navicularis.
Review the particular hospitals rape kit, the use of toluidine dye or
colposcopy, the chain of evidence, and routine laboratory procedures.
Carefully review any complaints of pain by the patient.
Discuss the use of drawings or blow-up diagrams.
Avoid use of the phrase Rape Trauma Syndrome.

3. Know Your Witness

Decide whether you want to qualify the clinician as an expert or a fact


witness.
Discuss the clinicians previous trial experience, professional training,
certifications, and publications.
Understand the potential power of a SAFE evidentiary examination.
Discuss the limits of clinical expertise. Understand what the clinician
cannot do, e.g., analyze DNA or determine the age of bruises.
Provide guidelines for Effective testimony, which address such issues as
courtroom etiquette, direct and cross-examination procedures, and the
legal implication of the use of certain terminology, e.g., probable vs.
possible.
Provide relevant medical literature for the clinician to review.

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Experts Checklist: Courtroom Testimony


in A Sexual Assault Case
Give the checklist on the next page to your
expert to help him or her prepare for trial.

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Experts Checklist: Courtroom Testimony in A Sexual Assault Case1


You have been asked to testify as an expert witness in a criminal sexual assault trial.
Here are some basic guidelines, which will help you prepare for your testimony.
These guidelines are very general. Each state has different rules about whether
experts can testify and what they can talk about when they are on the witness stand.
Ask the prosecutor who has requested your testimony to explain the specific
requirements for this particular trial. The following suggestions are offered to help
you prepare to testify:
1. Meet with the prosecutor far in advance of the scheduled trial.
Before testifying at the trial, you should meet with the prosecutor and establish the
scope and breadth of your testimony. This meeting should take place as soon as
possible after you have been contacted to testify. In this meeting, be prepared to talk
about the following issues:

The types of questions you will be asked to establish your credentials and
expertise;
The boundaries of your testimony;
The types of questions you will be asked by the prosecutor on direct
examination;
Areas you will not be asked about;
Areas that you should specifically avoid;
How to prepare for cross-examination; and
Questions to expect from opposing counsel.

2. Be prepared to discuss your qualifications, education and experience.


The prosecutor needs to have sufficient information about you to offer you as an
expert witness at trial. Be prepared to discuss with the prosecutor the following
questions about your background:
Educational/Professional Background:

Education: university, graduate school, particular classes in area of


expertise;
Degrees held;
Additional class work or training in your field of expertise;

This checklist was adapted from The Practical Use of Expert Witnesses in Cases Involving Violence
Against Women, by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women
Conference, Baton Rouge, Louisiana, April 13, 2000.

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Articles written on topics within your area of expertise;


Publication titles, journals and dates the articles were published;
Whether the articles were the subject of peer review;
Teaching experience;
Subjects taught;
Teaching location;
Length of teaching experience;
Memberships in any professional organizations; and
Types of professional organizations (invitation only or open to any
interested person).

Area of Practice:
Type of professional practice;
Length of time in professional practice;
Number of clients treated;
Number of sexual assault victims treated;
Definition of Rape-Related Posttraumatic Stress Disorder; and
Number of clients treated who suffer from Rape-Related Posttraumatic
Stress Disorder.
Previous Expert Testimony:
Any previous courtroom testimony;
If so, explain:
o when;
o in which courts (state or Federal);
o attorneys names;
o facts of those cases;
o whether they were criminal or civil cases;
o which side called you as a witness; and
o whether you were qualified as an expert in these other cases.
In any case where you have testified, the attorney may want to obtain a
transcript of your testimony.
Whether any court ever refused to qualify you as an expert.
3.

Talk to others who have testified as expert witnesses in court.

The prospect of testifying in court can be very intimidating, particularly if you have
not testified many times before. Even if you have testified numerous times, each
attorney has a different style of questioning and cross-examination. Judges have
different styles of managing their courtrooms and each case has different facts and
nuances. You should contact other experts who have testified and ask them about
their experiences, especially during cross-examination. Contact other prosecutors,
professional associations, local state sexual assault coalitions or local rape crisis
programs to get names of others who have testified.
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In addition, ask the prosecutor about general practices of the opposing counsel and
judge and ask to observe the courtroom before you testify. If time permits, ask the
prosecutor to conduct a practice direct examination and cross-examination with you.
Find out whether the other side intends to call an expert and get that experts name.
Be familiar with that experts background and credentials. Be prepared to suggest
areas of inquiry for cross-examination of the other expert.
4.

Be prepared to discuss your fee while testifying.

If you are charging a fee for your testimony, discuss the fee ahead of time with the
prosecutor, and agree on the amount. Be prepared to discuss your fee during your
testimony, either during your direct examination or on cross-examination. The
prosecutor may want to ask you about the fee during direct examination to avoid
difficult cross-examination on the issue. Be prepared to explain your fee in matter-offact terms, without getting defensive.
5. Find out what you need to establish in court and make sure you understand
key legal terminology.
Find out from the prosecutor exactly what information you need to develop during
your direct testimony. After the prosecutor has reviewed the areas of inquiry with
you, tell the prosecutor if he or she has missed any key issues you would like to
discuss. The prosecutor is relying on your insight to strengthen the case and avoid
surprises at trial. Suggest other specific questions you think would be helpful. Keep
in mind, however, that it is up to the attorney to decide which questions to ask.
Make sure the prosecutor explains the key phrases or terminology that he or she will
use or needs you to use while testifying. Requirements vary from state to state about
what key phrases are necessary before an expert can state an opinion. Make sure the
prosecutor explains the legal significance of such legal phrases as within a
reasonable degree of medical certainty and consistent with. Also be sure you
understand the legal distinction between something that is possible or probable.
6. Prepare your testimony using plain language and understandable
terminology.
You need to use plain language while testifying. Jurors do not have the benefit of
your education and it is critical that the jurors understand what you are saying. If you
have to use technical terms, explain the terms meaning in plain English before
continuing your testimony.
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7. Have the attorney explain the form your expert testimony will take. It will
usually take one of the following three forms:
a. Testimony to provide background information
Experts can testify about issues outside of the jurys general knowledge and
understanding. The judge or jury is then left to apply the information to the
facts of the case. Background information about such common characteristics
as delayed reporting, self-blame, lack of physical injury, fragmented
memories, recanting and minimization helps the judge or jury understand key
issues of the case and allows them to choose whether to apply what they have
learned in deciding the case before them.

b. Opinion testimony
In general, witnesses qualified as experts can give opinions where lay
witnesses cannot. Before an expert can express an opinion, the expert must
possess a reasonable certainty about the stated opinion. The experts opinion
should not be based on guesswork or speculation. To assist the prosecutor in
establishing your reasonable certainty about your opinions, be prepared to
address the following types of questions:

What facts did you consider in forming your opinion?


What are the relevant theories and principles that support your opinion?
Have these theories and principles been tested?
Have these theories or principles been published?
Have they been published in peer-review law journals?
Are these theories or principles generally accepted in your professional
community?
What appropriate assessment of methods did you use?
How would you defend or explain your opinion, if challenged?

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Remember you should never give opinions about whether the victim in
the particular case is telling the truth or has been sexually assaulted.

c. Testimony based on hypothetical questions


Some states require experts to express their opinions only in response to a
hypothetical form of questioning. These types of questions are not used as often
now because they can be cumbersome and confusing. When used, these questions
may be offered by either side, and may sound something like this:

Please assume the following facts (A set of facts will be given that may
mirror the facts of the case.) In your opinion, are these facts consistent or
inconsistent with someone who has experienced sexual assault?
If a hypothetical question is used during your cross-examination, listen very
carefully to the question.

Explain all distinctions you perceive between the

hypothetical question and your set of facts before answering the question.

8. Review the relevant research and literature.


There has been a great deal of research over the last several years about the
psychological sequelae of rape victimization and the traumatic response. Be sure that
you are familiar with, and have recently reviewed, the current research in this area
before testifying.
9. Be aware of issues related to confidentiality and privilege, and determine if
there is a conflict of interest in the case.
An expert witness should be cautious about testifying about a client in a criminal
case. The dangers of violating confidentiality and privileged communication are high

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under these circumstances. If you do decide to testify about an on-going client, you
must make sure that the client has been fully informed about the confidentiality and
privilege issues that may arise as a result of your testimony. This issue should be
discussed in detail with the prosecutor as well. It is often best to use an expert who
has no connection to the case, so conflicts of interest can be avoided.
Another difficult area that arises in sexual assault cases is the confidentiality of the
victims therapists records. Defense attorneys often try to get access to the victims
records. Victims therapy records may have information, unrelated to their sexual
assault, which they do not want disclosed. If you are associated with a hospital or
mental health center, your Risk Management Department may get involved with any
request for the facilitys records. Each states law varies on this issue, so you need to
be familiar with your states privilege and confidentiality laws. It is important that
you do what you can to protect the victims privacy and the confidentiality of her
therapy records. Make sure you discuss these issues with the prosecutor, if the apply
in your case.
10. Be careful when using statistics.
Because statistics can be so persuasive and they are commonly attacked on cross-examination, it is important to use accurate,
reliable figures in your testimony. Be prepared to discuss where you obtained the statistics and how the results were determined.
Cite statistics from the original source (professional journal, original research, government publication, etc.), NOT from a
magazine or newspaper article.

11. Be familiar with courtroom logistics and scheduling.


Find out from the prosecutor where you should park and exactly where you should go
when you arrive at the courthouse. Most courthouses have numerous courtrooms and
you need to be sure you know where to go. Get clear and specific directions from the
courthouse door to the courtroom. Find out what you should do upon arrival (wait
outside the courtroom or come inside and sit down).
It is important that you understand that trials are often postponed and schedules are
often delayed. You can ask the prosecutor to provide you with advance warning of
any delays and accommodate your schedule, but that that is not always possible. You
need to understand that the judge, not the attorneys, controls the court calendar.
Witnesses often take longer than anticipated, cross-examination may take longer than
expected and many other issues arise that affect a trial schedule. Keep in touch with
the prosecutor and be patient. Delays are inevitable and unavoidable.

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STATE-SPECIFIC LAW: RAPE SHIELD LAW, STATE-OF-MIND/EXPERTS


Faculty Needed:

Prosecutor Presenter(s)

Format for Unit:

Small Group Exercise and Plenary Discussion

Time Allotted:

Day II: 3:00 to 4:00 p.m.


1 hour

Content Overview State-Specific Law:


To effectively prosecute these cases, prosecutors must be able to apply their own state
laws regarding rape shield, admission of expert testimony, state of mind evidence,
force, consent and prior bad acts. A key piece of evidence may be the defendants prior
bad acts, an important topic that is covered later in the training. This segment covers rape
shield, admission of expert testimony, force, consent and state-of-mind evidence. The
exercises consist of hypotheticals which question the admissibility of various types of
evidence under the prosecutors state law. This unit gives participants an opportunity to
apply their state law to the facts of State v. Michael Cates.
This Faculty Manual Contains:

Rape Shield Exercise Directions and Worksheet on page 91.


State-of-Mind/Experts Exercise Directions and Worksheet on page 92.

The Participants Binder Contains:

Rape Shield Exercise Directions and Worksheet at Tab 8, page 8-80.


State-of-Mind/Experts Exercise Directions and Worksheet at Tab 8, page 8-81.

Special Instructions for the Faculty:

Explain Rape Shield Exercise (30 minutes): Five hypothetical facts that the
defense attorney may try to introduce at trial are presented. Plenary discussion to
follow the exercise.

Explain State-of-Mind/Experts Exercise (30 minutes): Prosecutor presenter


divides the room in half and assigns one half question 1 and one half question 2.
This hypothetical assumes that Amanda Brown froze and did not struggle against
Michael Cates. Using your state law, develop strategies for admitting this
powerful state-of-mind evidence at trial. Plenary discussion follows the small
group exercise.

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4:00-4:15

Break

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WORKSHEET
STATE v. MICHAEL CATES

Rape Shield Exercise


Directions: Take fifteen minutes to jot down your responses to the questions below and
discuss your responses with your tablemates. Be prepared to oppose the defense
attorneys motion. After the discussion, a reporter from each table will report on these
responses to the full group. The reporter will be the participant whose last name is closest
to the letter B, who was not a reporter for the earlier exercises. You are to assume the
following facts for the purposes of this exercise only. Allow 15 minutes for the report
back.
During trial preparation you discover that the defense attorney may attempt to introduce
the following:

Amanda Brown has dated many men since she began attending Marlow College.
Amanda Brown is known to hang out in a bar just down the road from the
college.
She has been seen in this bar dancing suggestively with her dates.
Amanda Brown was wearing an animal print thong on the night of the incident.
Amanda Browns sweater was tight, and her skirt was very short.
How do you handle these possible defense tactics?

Defense Counsel has moved to compel the State to turn over Ms. Browns sweater and
skirt.
What is your response to the motion?

Are you obliged to obtain these items from Ms. Brown?

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WORKSHEET
STATE v. MICHAEL CATES

State-of-Mind/Experts Exercise
Directions: Participants are divided in half. Half the room is assigned to respond to
question 1 and the other half is assigned to question 2.
Take fifteen minutes to discuss your responses to the assigned question below with your
tablemates. After the discussion, a reporter from each table will report on these responses
to the full group. The reporter will be the participant whose last name is closest to the
letter F, who was not a reporter for an earlier exercise. You are to assume the following
facts for the purposes of this exercise only. Allow 15 minutes for the report back.
Rather than Amanda Brown offering any verbal or physical resistance, she simply sat on
the bed and did not say anything to the defendant. She just stared into space, her body
stiffened and she cried during the incident.
During the interview she describes the defendants demeanor as very angry.
Ms. Brown describes the event as if she watched it from a corner of the room. She says
she felt as if it was happening to someone else, but she also felt that her life was in
danger.

1. Resistance is not an element of the crime, but jurors often equate lack of
resistance to consent. Using what you have learned in previous units of this
curriculum, how would you use Amanda Browns frozen fright reaction in your
case-in-chief?

2. You want an expert witness to testify that Amanda Browns reaction is consistent
with frozen fright or dissociation which are frequently seen responses in victims
of sexual assault. Under your state law, what arguments would you make to
convince the judge to admit this testimony?

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HOW TO KEEP ON KEEPIN ON: OVERCOMING VICARIOUS TRAUMA


Faculty Needed:

Various Faculty

Format for Unit:

Lecture, Plenary and Small Group Exercises and Video


Presentation

Time Allotted:

Day II: 4:15 to 5:15 p.m.


1 hour

Content Overview How to Keep on Keepin On:


Rape victims are traumatized, and those who repeatedly prosecute these extremely
difficult cases often experience vicarious trauma. This segment covers the need for
prosecutors to acknowledge how stressful these cases are and to develop strategies to
minimize their own traumatization. Therefore, this section should be fun.
The focus of this section should be on recognizing and preventing vicarious trauma.
Humor, fun and mental health breaks are important prevention strategies.
This unit consists of:
a word-association game;
a video;
a lecture; and
a Family Feud type game, using the survey distributed on Day I of
the conference during registration.
This Faculty Manual Contains:

Rules of the Game: Family Feud on page 97.


Family Feud Survey Handout on page 99.

Visuals for Unit:

Slides are in Appendix 13, Vicarious Trauma.

Special Instructions for the Faculty:

Explain Exercise Word Association Game: Use the visual in Appendix 10 to


determine whether the group has been doing this job too long. The slide lists
three sets of words: boy scouts, priests, and day care. Prosecutors who have been
prosecuting sex crimes cases for a while have a different response to these words
than the general public. Ask the group to call out the first word that comes to
mind. Allow two minutes for the Word Association Game.

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Show Video: Celebrate Living is approximately four minutes long.


This video encourages viewers to take time to feel joy and see the beauty
that surrounds us.

To order Celebrate Living, a 4-minute motivational


video, contact:
United Way of America
701 N. Fairfax Street
Alexandria, VA. 22314-2045
Phone: (703) 836-7100
Fax: (703) 683-7840
www.unitedway.org
Cost: $15.00

Lecture Outline: The Difference Between Vicarious Trauma and Burn-Out


o Burn-out occurs when one is tired, overwhelmed, distant from the job: the
hours, the tasks, the commute, the boss, the rules and the relationships.
o Vicarious trauma occurs when the individual is overwhelmed by the
experiences of the victims: their pain, loss and grief, witnessing family
tragedy, sensory overload and repetitive crises.
o Burn-out and Vicarious Trauma can occur simultaneously!!
o The Signs and Symptoms of Burn-Out
Burn-Out will normally occur slowly, over a long period of time. It may
manifest itself physically or mentally. Symptoms of burn-out include:
Physical Burn-Out
Feelings of intense fatigue;
Vulnerability to viral infection; and/or
Immune system breakdown.
Psychological Burn-Out
Feeling of lack of control over commitments;
An incorrect belief that you are accomplishing less;
A growing tendency to think negatively;
Loss of a sense of purpose and energy; and/or
Increasing detachment from relationships that causes conflict and
stress, adding to burn-out.
o The Signs and Symptoms of Vicarious Trauma
Taking your complainants home with you;

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Feeling very emotional during or after working with a survivor;


Sleeplessness;
Generalized anxiety;
Feelings of being overwhelmed;
Feelings of incompetence; and/or
Listlessness, low grade depression, the blahs.
Intrusive thoughts of clients, families and traumatic events: dreams,
nightmares, daydreaming, recurring images or vivid mental replaying of
clients trauma;
Anger or pervasive cynicism about the complainants, their families, the
system, yourself and/or the staff culture;
Hyper-aroused or over-reacting to insignificant events (especially at
home);
Revenge fantasies;
Emotional detachment to significant others (numbing, flat affect, loss of
humor/warmth);
Lack of interest in sex or romance;
Tendency to talk about sexual assault (or other client trauma) all the time;
See all complainants as potential victims or abusers;
Second guessing and gossiping if staff members have been victims
themselves;
Fear of the possibility of personal tragedy; and/or
Haunting memories of ones own traumatic events.

o 3 Risk Factors for Vicarious Trauma


Exposure to the stories (or images) of multiple victims;
Your empathetic sensitivity to their suffering; and
Any unresolved emotional issues that relate (affectively or
symbolically) to the suffering seen.
o Prevention Strategies and Solutions
Techniques for recognizing and dealing with your own issues which get
stirred up;
Break from the psychological intensity of trauma work;
Social time with staff (off work topics);
Mental health breaks;
Reconnect with community, friends;
Sports, hobbies;
Vacation (at least two weeks long);
Experiences which instill comfort and hope;
Confine case conferences to legal and victim-focused issues;
Recognize when your personal issues interfere and bring them to an
appropriate forum;
Set clear boundaries between home and work, e.g., work clothes and fun
clothes;
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Use rituals to separate work from rest of life, e.g., special music in the car
on the way home, leaving your things in the car or a separate room;
Balance your work load as to types of client problems;
Self-care and self-nurturance (a necessity!!).

Explain Exercise Family Feud: This exercise utilizes the survey about
stressors and coping methods distributed on Day I of the conference during
registration. Directions are on the following page.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume II, Tab 11, Vicarious Trauma.

Special Instructions for Faculty:


Day II ends here. Be sure that participants have completed and turned in their daily
evaluations.

CONCLUSION DAY II

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RULES OF THE GAME


FAMILY FEUD
Family Feud is an adaptation of the television game show of the same name. The object
of the game is to guess the most popular answers to various survey questions, e.g., Give
me the name of a famous George.
Each table constitutes a family. Each family must select a tablemate to represent it. Each
family representative answers the questions for the family. Encourage the families to
help their representative loudly during the game.
In each of 5 survey rounds, the family representatives attempt to guess the most popular
answers to a question. A family earns points for correct answers along the way. For
example, if a familys representative said, Washington to the question about a famous
George and that was the most popular answer, that family would receive 100 points; if it
was the second most popular answer, 80 points; third most popular, 60 points, and so on.
Each survey question will have the five top responses listed below it on the game board,
each covered by a slip of paper. Each family representative submits one answer per
round; if the answer is one of those 5 listed on the game board the family receives the
corresponding points.
The family with the most points at the end of the game wins.
During registration on Day I of the conference, each participant was asked to fill out and
return the survey found on page 95. The collective surveys provide the answer board for
the game. At some point between registration and this unit, faculty analyze the surveys to
see what the top five answers were in each category.
The five subject areas are:
1. stressors at home;
2. stressors at work;
3. interoffice tensions;
4. coping methods at home; and
5. coping methods at work.
The game equipment and personnel consist of these components:

Answer board Displays survey questions and top five answers. At the start of
the game the answers are covered with a flap of paper over the answer indicating
the point assignment.

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Timer counts down 10 seconds to respond to each question. (The timer can be
an individual with a stopwatch, or someone who just counts to him/herself.) Each
round should take no longer than 3 minutes.
Scoreboard flip chart or china board to display players scores.
Referee(s) in the event there is a conflict, it will be settled by the referee(s).

Playing the Game:


After the family representatives have been selected it is time to get ready for the Feud.
The presenter announces the first question and states that X number of people (the
number of students in attendance) were surveyed and the top five responses to the
question are listed under each of the five flaps.
The presenter starts the timer as soon as the question is revealed, allowing 10 seconds for
the representatives to consult with their families. Each representative must then submit an
answer, which is his or her guess as to the most popular answer to the question. If a
family representative guesses one of the top answers on the board, that answer will be
revealed along with the number of people surveyed who matched that response. The
presenter will list the points won by each family on the flip chart. Each family takes a
turn. If an answer is missed, the presenter reveals it after all the players have completed
the round. Each round should take no longer than 3 minutes.
The presenter adds the points won in each round and the family with the highest score
wins. The presenter awards them a fun prize.
Prizes: Prizes should be simple and inexpensive, e.g., little stuffed animals and stress
balls.

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HANDOUT

Survey

Directions: Please take a few minutes to answer the follow survey questions. A faculty
member will collect these surveys to be used later during the conference.

Name five major stressors at home.


1.
2.
3.
4.
5.
Name five major stressors at work.
1.
2.
3.
4.
5.
Name five causes of interoffice tension.
1.
2.
3.
4.
5.
List five coping methods you use to relieve stress at home.
1.
2.
3.
4.
5.
List five coping methods you use to relieve stress at work.
1.
2.
3.
4.
5.

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MYTHS AND REALITIES - OVERVIEW


Faculty Needed:

Offender Expert

Format for Unit:

Lecture

Time Allotted:

Day III: 8:30 to 9:30 a.m.


1 hour

Content Overview Myths and Realities:


The sex offender expert will provide a comprehensive overview of sex offenders (e.g.,
characteristics, myths, planning, multiple offending patterns). The focus will be on
nonstranger rapists who are difficult to prosecute because they do not meet societys
expectations about who rapists are and what they look like. This unit uses a video
reenactment of an interview with a pre-law student who casually discusses the planning
process he and his fraternity brothers engage in to target their victims.
Visuals for Unit:

Slides are in Appendix 14, Offenders: Myths and Realities Overview. These
visuals provide the outline of the substantive content of the experts presentation.

The Participants Binder Contains:

The Experts slides for this unit, at Tab 9, page 9-2.

Special Instructions for the Faculty:

Lecture Outline/Visuals: The visuals provide the outline of the substantive


contact of this section. The expert should use these visuals as the outline of their
presentation.

Video Ordering: To order a videotape of The Undetected Rapist, use the


order form on the following page.

9:30-9:35

Stretch Break

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THE UNDETECTED RAPIST


Re-enactment of an interview conducted by Dr. David Lisak, excerpted from the
National Judicial Education Programs video curriculum, Understanding Sexual
Violence: The Judges Role in Stranger and Nonstranger Rape and Sexual Assault
Cases.

Video Order Form


Contact
Name:___________________________________________________________
Organization Name:_______________________________________________________
Address:________________________________________________________________
_______________________________________________________________________
Phone:______________________________ Fax:_______________________________
Email:__________________________________________________________________
Number of Videos at $15.00 each: ___________
Running time: 6 minutes, 18 seconds.
Please remit your enclosed payment in the amount of _________ to NOW Legal Defense
and Education Fund, earmarked for NJEP. You may pay by check or credit card. If you
wish to pay by credit card, please complete the following:
Check one:

___ Visa

___ Mastercard

Card Number:_________________________

___ American Express


Exp. Date:___/____

Billing Address:__________________________________________________________
Signature:_______________________________________________________________
Mail your order form and payment to:
National Judicial Education Program
395 Hudson Street, 5th Floor
New York, NY 10014
Orders cannot be processed until payment is received. Our federal tax ID number, which you
may need for ordering, is 23-7085442. Please allow two to three weeks for delivery. These
prices include regular postage within the United States. If you are outside the United States,
postage will depend on your location and postal preference, i.e., surface or air.

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For more information, contact the National Judicial Education Program at NOW Legal
Defense and Education Fund at (212) 925-6635; Fax: (212) 226-1066, 395 Hudson
Street, 5th Floor, New York, NY 10014-3684, njep@nowldef.org.

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SERIAL OFFENDING AND PRIOR BAD ACTS


Faculty Needed:

Offender Expert
Prosecutor Presenter(s)

Format for Unit:

Lecture and Video

Time Allotted:

Day III: 9:35 to 10:35 a.m.


1 hour

Content Overview Serial Offending and Prior Bad Acts:


The offender expert reviews the research about undetected nonstranger serial rapists. The
offender expert and prosecutor presenter discuss the implications of this research for the
trend toward admitting prior bad acts in sexual assault cases.
Visuals for Unit:

Slides are in Appendix 15, Offenders: Serial Offending and Prior Bad Acts. These
visuals provide the outline of the substantive content of the experts presentation.

The Participants Binder Contains:

The Experts slides for this unit, at Tab 9, page 9-8.

Special Instructions for the Faculty:

Lecture Outline/Visuals: The visuals provide the outline of the substantive


contact of this section. The expert should use these visuals as the outline of their
presentation.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume II, Tab 13, Sex Offenders, Sentencing and Sex Offender
Treatment.

10:35-10:45

Break

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STATE-SPECIFIC LAW SECTION: PRIOR BAD ACTS


Faculty Needed:

Prosecutor Presenter(s)

Format for Unit:

Small Group Exercise

Time Allotted:

Day III: 10:45 to 11:15


30 minutes

Content Overview Prior Bad Acts:


To effectively prosecute rape and sexual assault cases, prosecutors must be able to apply
their states law regarding prior bad acts. This unit gives participants an opportunity to
apply their law to the facts of State v. Michael Cates.
This Faculty Manual Contains:

The Prior Bad Acts Exercise Directions and Worksheet is on page 104.

The Participants Binder Contains:

The Prior Bad Acts Exercise Directions and Worksheet at Tab 9, page 9-14.

Special Instructions for the Faculty:

Explain Exercise Prior Bad Acts: Give participants the four prior bad acts
scenarios and which, if any, they would seek to introduce at trial. Allow
participants five minutes to write down their answers, 10 minutes to discuss their
responses with their tablemates, and 15 minutes to report back.

Refer to the Resources Book: Other material relevant to this section is in


Volume II, Tab 13, Sex Offenders, Sentencing and Sex Offender Treatment.

11:15-11:20

Stretch Break

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WORKSHEET
STATE v. MICHAEL CATES
Prior Bad Acts Exercise
Directions: Take five minutes to write down the answers to the questions below, and
then ten minutes to discuss your responses to the assigned question below with your
tablemates. After the discussion, a reporter from each table will report on these responses
to the full group for an additional fifteen minutes. The reporter will be the participant
whose last name is closest to the letter I, who was not a reporter for an earlier exercise. If
under your state law you may be able to admit some or all of these prior bad acts, be
prepared to explain which incident(s) you would seek to introduce at trial and why.
During trial preparation you discover several other women who claim to have been
sexually assaulted by Michael Cates.

One woman never reported the incident because she was embarrassed and
ashamed.

A second woman reported the rape, but the college took no action.

A third woman reported the sexual assault to the police, but the police declined
action because she was intoxicated.

A fourth woman states that she attended a party where Michael Cates pressured
her to drink much more than she was used to drinking. She was so drunk that she
was unable to walk. Her friend found her in a room alone with Mr. Cates and
insisted she leave. The woman explains that her friend carried her out of the room
and took her home. This woman does not indicate that there was any sexual
contact between her and Mr. Cates.

1. Which of these witnesses would you want to testify?

2. What specific arguments would you make to persuade the judge to admit this
evidence?

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PLEAS AND SENTENCING


Faculty Needed:

Prosecutor Presenter(s)
Offender Expert

Format for Unit:

Lecture and Two Small Group Exercises

Time Allotted:

Day III: 11:20 a.m. to 12:30 p.m.


1 hour, 10 minutes

Content Overview Pleas and Sentencing:


The sex offender expert discusses effective sentencing and the importance of a plea in
which the defendant admits guilt. The prosecutor presenter explores the tension between
this and the real world of sentences and plea offers.
This Faculty Manual Contains:

The Sentencing Recommendations Exercise Directions and Worksheet is on


page 107.
Defendants Sentencing Proposal Exercise Directions and Worksheet is on page
108.
Defendants Sentencing Proposal is on page 109.
A Faculty Cheat Sheet for the response to the Defendants Sentencing Proposal
follows on page 110.

Visuals for Unit:

Slides are in Appendix 16, Offenders: Pleas and Sentencing. These visuals
provide the outline of the substantive content of the experts presentation.

The Participants Binder Contains:

Relevant slides at Tab 10, page 10-2.


The Sentencing Recommendations Exercise Directions and Worksheet at Tab
10, page 10-7.
The Defendants Sentencing Proposal Exercise Directions and Worksheet at
Tab 10, page 10-8.
The Defendants Sentencing Proposal at Tab 10, page 10-9.

Special Instructions for the Faculty:

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Lecture Outline/Visuals: The visuals provide the outline of the substantive


content of this section. The expert should use the visuals as the outline of the
presentation.

Explain Exercise Sentencing Recommendations: Ask participants to review


The Full Story Handout, page 37 in this Faculty Manual (approximately two
minutes). Then have them use the worksheet at page 10-7 in the Participants
Binder to jot down their responses. Allow five minutes for this portion of the
exercise. Then the faculty presenter should ask participants for their responses.
The faculty presenter should record the participants responses on a flip chart or
overhead slide. Allow 10 minutes for the discussion.
o What would you recommend as a sentence in a:
Plea offer before trial?
Would you accept an Alford or no contest plea?
What is the effect of registry laws on pleas?
Conviction after trial?
Can Cates uncharged prior bad acts be introduced?

Explain Exercise Defendants Sentencing Proposal: At page 109 is the


narrative of defendants sentencing proposal. Ask participants to read this
proposal (approximately two minutes). Then conduct a ten-minute plenary
discussion about how they would respond.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume II, Tab 13, Sex Offenders, Sentencing and Sex Offender
Treatment.

12:30-1:30

Lunch

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WORKSHEET
STATE V. MICHAEL CATES
Sentencing Recommedations
Directions: Re-read The Full Story Handout. Then take five minutes to jot down your
responses to the questions below. During the next 10 minutes, share your responses with
the full group.

What plea offer would you offer before trial?

Would you accept an Alford or no contest plea? Why/why not?

If your state has a registry law, is the registration affected by the plea?

What sentence would you recommend after a conviction at trial?

In your state, can you introduce evidence of Cates uncharged prior bad acts at
sentencing?

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WORKSHEET

STATE v. MICHAEL CATES


Defendants Sentencing Proposal
Directions: Read the Defendants Sentencing Proposal on the following page
(approximately two minutes). Be prepared to respond to the several aspects of the
proposal. Use this worksheet to jot down your responses. Allow ten minutes for this
discussion.
How do you respond to the several aspects of the defendants sentencing proposal?

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DEFENDANTS SENTENCING PROPOSAL


STATE v. MICHAEL CATES

At some point in your negotiations, or, at a sentencing hearing, Mr. Cates attorney offers
the following sentencing proposal. How do you respond?
_______
My client is sorry that the situation got out of hand on their date, mostly because of the
alcohol they both consumed. He understands that Ms. Brown is upset and he regrets the
misunderstanding. He never intended to cause her any harm.
Consider the many factors in this case which show that incarceration is inappropriate.
Why ruin a good kid's life? This is Mr. Cates first offense. He has not been in trouble
with the law before this incident. There were no weapons; he wasn't violent; he did not
threaten Ms. Brown. She wasn't hurt. Ms. Brown wasn't beaten or even bruised.
Therefore, we think it appropriate that Mr. Cates be placed on probation, continue the
treatment he has already begun on an outpatient basis, and in addition be required to
complete community service.
We have met with the college officials who have agreed to his continued enrollment once
he has been placed on probation. Thus he will have stability in his life.
Mr. Cates has begun treatment with Dr. Stewart Stuart. Dr. Stuart is well known and has
worked with many criminal offenders over the past three years. He has effectively treated
many of his patients. Mr. Cates has been attending individual therapy sessions with Dr.
Stuart and is actively participating in those sessions. His parents are supportive and are
paying for his therapy.
Dr. Stuart conducted a careful risk assessment and evaluation of Mr. Cates, using the
MMPI to determine the type of treatment plan to employ in this case. Dr. Stuart also
believes the defendant is a good candidate for treatment and is at low risk to repeat this
offense because he does not fit the profile of a rapist and this was his first encounter with
the law.
The other component of the doctors treatment plan is to have the court direct the
defendant to perform community service in either a rape crisis center or a domestic
violence shelter, so that he can understand the harm suffered by women and develop
empathy with them.

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My client is ready to do the recommended community service.


_______

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FACULTY CHEAT SHEET


STATE v. MICHAEL CATES
Sample Response to the Defendants Sentencing Proposal
Treatment Plan:
Private one-on-one therapy is not appropriate for sex offenders. Sex offender treatment is
specialized, comprehensive, multi-method, and extremely tough. Real sex offender
treatment includes a comprehensive assessment and treatment plan, behavioral
modification, empathy training, group therapy, recognizing offense precursors,
plethysmograph/polygraph testing and relapse prevention. It is not weekly, individual
therapy sessions. Further, administering the MMPI is only one small part of a complete
risk assessment, which requires tests specifically focused on sex offending, which the
MMPI is not.
Community Service Proposal:
Regarding community service, absolutely no assignment to a rape crisis center or
domestic violence shelter is appropriate. This is the worst possible form of community
service for a defendant who has demonstrated a problem with violence against women.
This is so for two reasons: first, it puts these other women, who have already been
victimized, at risk; second, rapists with cognitive distortions about women do not develop
victim empathy just by being around other victims. If they develop it at all, it only comes
from intensive specialized treatment.
Defense Characterization of the Case:
The defense characterization of this case is highly objectionable. This defendant was
convicted by a jury of a violent crime. But he has not admitted his guilt or taken
responsibility for the crime. Rather, he blames it on alcohol and characterizes the rape as
a misunderstanding. While we are here to talk about the sentence for the defendant, the
victim in this case has already been sentenced, as you heard in her impact statement. This
defendant will only serve a term of years; Ms. Brown will serve a life sentence. She has
told the Court that she will never forget the rape and her life will never be the same.
The defense attorney has urged you to take into account the fact that the defendant is a
young man with his life ahead of him. I implore you to consider that before this rape Ms.
Brown was looking forward to the life ahead of her. The defense has asked for probation,
treatment, and community service. Such a sentence is not commensurate with this crime,
will not communicate the severity of his conduct, and will not deter the defendant from
committing similar crimes in the future.*

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* If you are in a state where Cates prior bad acts were admissible at trial and/or could be
introduced as evidence in the sentencing phase, include comments on his history as a
serial rapist.

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CROSS-EXAMINATION OF A DEFENDANT IN A CONSENT CASE

Faculty Needed:

Prosecutor Presenter(s )

Format for Unit:

Large Group Exercise

Time Allotted:

Day III: 1:30 to 2:30 p.m.


1 hour

Content Overview Cross-Examination:


This exercise is designed to help participants incorporate the information presented
during the Sex Offender section in structuring their cross-examination of the Defendant,
Michael Cates. Participants will be asked to identify areas of cross-examination and
design specific questions to elicit particular responses from him.
This Faculty Manual Contains:

Cross-Examination Exercise Directions and Worksheet on page 112.


The Faculty Cheat Sheet is on page 113.

Visuals for Unit:

Slides are in Appendix 17, Cross-Examination.

The Participants Binder Contains:

Cross-Examination Exercise Directions and Worksheet at Tab 10, page 10-12.


Relevant slides at Tab 10, page 10-13.

Special Instructions for the Faculty:

Explain Cross-Examination Exercise: Ask participants to take ten minutes to


respond to the questions on the Cross-Examination Worksheet at page 10-12 in
the Participants Binder. Allow 10 minutes for participants to discuss their
responses with their tablemates. Use the remaining 40 minutes to engage all
participants in a discussion about their responses. The prosecutor presenter should
record the responses on a flip chart or overhead slide.

Refer the Participants to the Resources Book: Other material relevant to this
section is in Volume II, Tab 14, Cross-Examination.

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2:30-2:35

Stretch Break

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WORKSHEET
STATE v. MICHAEL CATES
Cross-Examination Exercise
Directions: Take 10 minutes to jot down your answers to each of the following
questions. Then take 10 minutes to discuss your responses with your tablemates. During
the remaining 40 minutes the prosecutor presenter will ask all participants to discuss their
responses.

1. Using what we have learned from the Offender Experts presentation on sex
offenders, what areas of cross-examination can you identify for Mr. Cates in State v.
Michael Cates?

2. What questions would you want to ask if Michael Cates takes the stand? What
responses do you hope to elicit from him?

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FACULTY CHEAT SHEET


STATE v. MICHAEL CATES
Cross-Examination
If participants do not mention the topics listed below, the prosecutor presenter should
raise them during the discussion.
DO:

Corroborate the victims account of the facts


Assess the defendant after his direct examination
Consider how, if at all, you would change your cross-examination strategies
after the defendant testifies

AVOID:

Fact-finding during cross-examination


Giving the defendant an opportunity to retell his story on cross-examination
Aggressive questioning
Arguing with the witness
Asking the one question too many

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VOIR DIRE: OVERVIEW


Faculty Needed:

Prosecutor Presenter(s )
Expert on Juror Attitudes in Rape/Sexual Assault Cases

Format for Unit:

Video, Lecture and Exercises

Time Allotted:

Day III: 2:35 to 3:35 p.m.


1 hour

Content Overview Voir Dire:


Given societys adherence to rape myths, voir dire is often the crucial point of a
rape/sexual assault trial. Building on the discussion of rape myths that begins in the
programs opening exercise, this segment utilizes lecture, discussion and exercises to
cover the purposes of rape case voir dire, the linkage between voir dire and summation,
research on juror attitudes toward rape cases, and constructing/asking effective voir dire
question in these types of cases. The pre-conference assignment asking participants
about voir dire questions and strategies comes into play here.
This Faculty Manual Contains:

Bob and Lisa Mock Jury Deliberation Video Synopsis on page 116.
A Faculty Cheat Sheet for use in the debriefing on page 117.
Text of What the Research About Rape Jurors Tells Us Lecture beginning on
page 118.

Visuals for Unit:

Slides are in Appendix 18, Voir Dire.

The Participants Binder Contains:

Relevant slides at Tab 11, page 11-2.

Special Instructions for the Faculty:

Show Videotape Bob and Lisa Mock Jury Deliberation: The presenter
should show the first 6 minutes of the videotape.

Lecture Outline: What the Research About Rape Jurors Tells Us: Text of
What the Research About Rape Jurors Tells Us begins at page 118.

Explain goals of rape voir dire:


o seeking the bad answer
o identifying and striking biased jurors

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o preparing for summation

Discuss Jury Questionnaires: Some jurisdictions allow the use of jury


questionnaires. Discuss:
o pros/cons of using jury questionnaires;
o what to include in a jury questionnaire; and
o combined use of questionnaire and face-to-face voir dire.

3:35-3:45

Break

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VIDEO SYNOPSIS
Bob and Lisa Mock Jury Deliberation
Agreed Upon Facts:
Bob and Lisa are both college students, juniors at local university.
They had two prior dates and kissed.
Bob invited Lisa to a Saturday night fraternity party.
It was noisy so she went to his room.
They both sipped beer there.
He is 6, 170 lbs.
She is 55, 120 lbs.
Lisa:

Bob:

She claims they began kissing and then he became aggressive and pushed her and
held her down.
She couldnt push him off. Afraid hed push her in the face.
She said stop. He didnt.
She ran home to sorority house. No one was around.
She showered and tried to sleep.
She had nightmares.
Sunday she was exhausted and stayed in bed.
Monday she told her house mother, who took her to the health center.

She wore a very sexy dress.


At fraternity party, she asked to go to quieter place to talk they went to his
room.
She was aggressive and called the shots. They had sex. Not rape.
Afterward she dressed and said well talk soon okay? and left.

To order Bob and Lisa contact:


Stephen J. Paterson
President
Jury Sciences, LLC
609 Deep Valley Drive, Suite 200
Rolling Hills Estates, CA 90274
Phone: (310) 544-8773
Fax: (310) 544-8794
Email: sjp@vindim.com
Cost: $50.00
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FACULTY CHEAT SHEET


Video: Mock Jury Deliberation in Bob and Lisa Case

The prosecutor presenter should begin by asking participants what they noticed regarding
the jurors deliberations.

What issues did the jurors focus on?

Did participants mention that the jurors misstated the trial testimony about
where it was that no one was around for Lisa to tell? If not, discuss this
problem.

What implications does this have for participants trial strategies?

What myths controlled the jurors deliberations?


Delayed reporting
Lisas lack of resistance
No weapons used
No extrinsic physical injury
Lisa voluntarily accompanying Bob to his room

How would participants address rape myths during trial?

If the participants dont mention it, point out that the jurors never mention
the defendants conduct.

What does this mean for the prosecutors trial strategy?

What would the participants do during trial to focus the jurys attention on
the defendants conduct?

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What the Research About Rape Jurors Tells Us


By Lynn Hecht Schafran, Esq.
Director
National Judicial Education Program
[If you show the Bob and Lisa Mock Jury Deliberation videotape, begin here. If not,
modify this opening as needed.]
We have just heard a fascinating dialogue among a group of diverse citizens
selected by a prominent jury consulting firm to participate in a mock jury deliberation.
Among the questions their comments raise is: are these individuals sui generis? Or are
they typical of sexual assault jurors everywhere?
Knowing whether the viewpoints expressed by these jurors are typical is
important not only from the point of view of achieving more convictions, but also from
the point of view of the integrity of the jury system. The theory of the system is that we
select individuals who either do not have or can put aside their biases, listen openmindedly to the evidence, and follow the law as the judge instructs. If we have an area of
law where jurors cannot do that, where cases are being decided on extra-legal factors
related to myths and psychological needs, then the system is not working and we need to
figure out how to fix it. The apt metaphor here is not a level playing field. Criminal cases
rightly place an extremely high burden of proof on the prosecution, i.e., beyond a
reasonable doubt. Rather, the apt metaphor is: is everyone playing by the rules?
Juries are an endless source of fascination to judges, lawyers and social scientists.
The first large-scale jury research was conducted by Harry Kalven and Hans Zeisel in the
1960s.1 They observed jury deliberations and surveyed judges in detail about individual
cases and the judges agreement or disagreement with jurors decisions in these cases.
From their sample of 3,576 criminal jury trials they focused particularly on the impact of
extralegal information in the 25% of cases where there was judge/jury disagreement, and
how this extralegal information accounts for the fact that in the vast majority of cases
where there was disagreement, the jury was more lenient than the judge would have been.
Within the group of cases of particular interest to Kalven and Zeisel was one
group where the judge/jury disagreement was sharpest. These were the 42 cases of what
the researchers called simple rape. That is, one perpetrator, the parties knew each
other, no weapon was used, and there was no physical injury extrinsic to the rape. There
were 42 of these cases, and only 3 convictions. The researchers found almost 100%
disagreement between judge and jury in the half of these cases where there was a rape
charge and a lesser included offense. The judge would have convicted of rape; the jury
went for the lesser offense.
1

Harry Kalven Jr. and Hans Zeisel, THE AMERICAN JURY (1966).

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In cases where the juries had to choose between finding the defendant guilty of
rape or acquitting him, juries acquitted where judges would have convicted. Kalven and
Zeisel described the actions of all these juries as the jury chooses to redefine the crime
of rape in terms of its notions of assumptions of risk.2 In other words, if she went to a
bar, went to the defendants apartment, etc., she assumed the risk.
Now fast forward 20 years to the early 1980s. Has anything changed? In the early
1980s Gary LaFree led a team of social scientists in a major jury study of sexual assault
cases in Indianapolis.3 The researchers conducted in-depth 90-minute interviews with
331 men and women who had sat on rape case juries.
They found that jurors made their decisions based on the victims character and
lifestyle even where there was proof of use of a weapon or victim injury. Jurors were less
likely to believe in the defendants guilt when the victim reportedly drank or used drugs,
was acquainted with the defendant, or engaged in sex outside marriage. LaFree wrote
that the jurors disregarded the evidence and decided cases on the basis of their personal
values. And these values were so rigid with respect to appropriate behavior for women
that they even disbelieved women who held non-traditional jobs, for example, a woman
who drove a school bus.
Another factor that emerged starkly in the LaFree study is the issue of race.
When we think about rape and race, most of us think about the extreme animus
toward black men charged with raping white women. This aspect of the rape and race
issue did emerge in the Indiana study. Taken together, the results indicate that
processing decisions in these sexual assault cases were affected by the race composition
of the victim-defendant dyad, and the cumulative effect of race composition was
substantial.4 But what also emerged was a strong devaluation of African-American
women as victims of sexual assault: It is clear from the analysis that black offenderwhite victim rapes resulted in substantially more serious penalties than other rapes.
Moreover, black intraracial assaults consistently resulted in the least serious punishment
for offenders.5 For example, in one of the cases a juror said of a 13-year-old black
victim that she came from a bad neighborhood and probably wasnt a virgin anyway.
This devaluation of women of color in sexual assault cases is vividly
demonstrated by a study of sentencing in Dallas, Texas. In Texas, juries impose
sentences. When prosecutors make plea bargains, it is, in the words of the Dallas
prosecutor at the time, the juries [who] set the benchmark.6 A study of sentencing and
pleas by a local newspaper in 1990 found that the median sentence for a black man who
raped a white woman was 19 years and the median sentence for a white man who raped a
2

Id. at 254
Gary D. LaFree, RAPE AND CRIMINAL JUSTICE: THE SOCIAL CONSTRUCTION OF SEXUAL ASSAULT (1989)
4
Id. at 140
5
Id. at 145, emphasis supplied
6
Herndon, Ray F. Race Tilts the Scales of Justice, Dallas Times Herald, 1990, at A 22.
3

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black woman was 10 years. This is a very interesting differential, but even more
revealing were the statistics on same-race rape (which, despite the stereotypes, is what
the vast majority of rapes are). The median sentence for white on white rapes was 5
years, for Hispanic/Hispanic rape 2.5 years, and for black on black rape 1 year.
The origins of this devaluation of women of color who are victims of sexual
assault go back to slavery. White men repeatedly raped black female slaves with total
impunity. To avoid acknowledging, even to themselves, the truth of what they were
doing, these men invented the victim-blaming myth of the promiscuous black woman
who had seduced them.
Rape, Racism, and the Law in 6 Harvard Womens L. J. 103 (1983)7 is an article
about this aspect of rape and race that I recommend to you because we are clearly living
with this attitude still today. The comfort people feel with this attitude is such that some
will even express it openly. A few years ago in Westchester County, N.Y., a black
woman was raped on the examining table by a white doctor. At first he denied sexual
contact. When the DNA came back he claimed that the sex was consensual and he
denied it only so his wife would not know what hed done. After he was acquitted, a
white male juror wrote to the prosecutor, We thought a black female like that would be
flattered by the attention of a white doctor.8
Other jury research has found jurors preoccupied with the victims resistance. In
the recent past, rape laws in every state called for utmost resistance, but that has been
phased out of the law. Yet in the LaFree study of Indiana jurors, 32% believed that a
womans resistance to her attacker is a critical factor in determining the rapists
culpability and 59% believed a woman should do everything she can to repel her attacker.
Given that jurors are screened that is, they go through a voir dire process
intended to eliminate those who cannot follow the law one might think that juror
attitudes would look different than those of the general population, but they do not. For
example, in 1991 Time/CNN commissioned a national opinion poll on these issues and
found that 38% of men and 37% of women said that a raped woman is partly to blame if
she dresses provocatively. A 1998 survey among a properly randomized sample of
Georgia residents aged 18 to 49 revealed that sexual stereotypes and myths regarding
sexual assault and rape persist.9 When asked how strongly they agree or disagree with the
statement, Many women cry rapesaying they have been raped when it really hasnt
happened, 49% of men and 42% of women polled expressed some degree of agreement
with the statement. We know that the vast majority of rapes involve no weapons. But
48% of men and 48% of women in the Georgia study believed that sexual assault
necessarily includes the use of a gun or other weapon. We know the particularly
7

The author is Jennifer Wiggins.


Telephone interview with Barbara Eggenhauser, Assistant District Attorney, Westchester County, New
York (April 21, 1992).
9
Global Strategy Group, Inc., for the Georgia Network to End Sexual Assault (1998).
8

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devastating effects of marital rape. But in the Georgia study, 20% of men and 9% of
women believed a woman has no right to say no to her husband. And if you think the
next generation of jurors is going to think differently, in a 1988 survey of 1,700 6th to 9th
grade students in Rhode Island, 65% of the boys and 57% of the girls said that in a dating
relationship, it was acceptable for a man to force a woman to have sex if the couple had
been dating more than six months. Half of the students said that a woman who walks
alone is asking to be raped.
You may have been struck by the fact that the percentages of men and women,
and boys and girls are so close on many of these questions. Another aspect of juror
attitudes that has fascinated researchers and tripped up many a prosecutor is the apparent
hostility of many women jurors toward the complaining witness. New prosecutors are
frequently surprised by how censorious women jurors are of the complainants behavior.
The assumption is made that because women are most at risk of rape, they will be
most sympathetic to the alleged victim. But for many women, that is exactly why they
are hostile. It is a matter of psychological self-protection. If I can distance myself from
you; if I can say that I would never go to a bar or a mans apartment or accept a ride
from someone I only knew slightly, then I dont have to acknowledge my own
vulnerability. This is an enormously powerful motivator. As Aristotle put it If
people claiming pity are too close to oneself, then we feel about them as if we were in
danger ourselves and we do not extend our pity to them.
Now all of this, of course, is going on subconsciously. The question of how to
surface it, and get women to set it aside and attend to the evidence and the law, or remove
them from the jury if they cannot, is the challenge, as it is with all types of bias in these
cases.
A particularly hard case is the male juror who has engaged in conduct that meets
the legal definition of rape, but who never viewed his behavior as criminal. Such a juror
may come to understand the true nature of his conduct during trial and realize,
consciously or subconsciously, that if he votes to convict the defendant he is
acknowledging his crime and convicting himself. Or he may identify with the behavior
and not think the defendant did anything wrong. In either case, he will vote to acquit, no
matter what the evidence.
What can be asked during voir dire to meet these challenges we now take up with
you.

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VOIR DIRE: EXERCISES


Faculty Needed:

Prosecutor Presenter(s )

Format for Unit:

Lecture and Small Group Exercise

Time Allotted:

Day III: 3:45 to 4:45 p.m.


1 hour

Content Overview Crafting Your Voir Dire:


This unit is divided into two sections. During the first section, the prosecutor presenter
will lecture on the critical link between what the jury hears during voir dire and again in
the prosecutors summation. Then participants will apply what they have learned in the
prior units of the program to craft voir dire questions for State v. Michael Cates.
This Faculty Manual Contains:

Voir Dire Exercise Directions and Worksheet (Overview) on page 125.


Individual Participants Exercise Directions and Worksheet on page 126.
Reporters Exercise Directions and Worksheet on page 127.
Report back instructions on page 123.
A Faculty Cheat Sheet on page 128.

The Participants Binder Contains:

Voir Dire Slides at Tab 11, page 11-2.


Voir Dire Exercise Directions and Worksheet (Overview) at Tab 11, page 11-7.
Individual Participants Exercise Directions and Worksheet at Tab 11, page 11-8.
Reporters Exercise Directions and Worksheet at Tab 11, page 11-9.

Special Instructions for the Faculty:

Lecture Outline The Critical Link Between Voir Dire and Summation:
o Each state has its Criminal Jury Instructions (C.J.I.). These are instructions
given by the judge at the end of the trial. Each instruction presents the jury
with the elements of the crime that the prosecutor must prove beyond a
reasonable doubt.
o As the prosecutor begins to prepare the case she should have the C.J.I.
instructions which will be used in her case. Use the C.J.I. to craft your voir
dire questions.
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o The C.J.I. can help a prosecutor prepare voir dire questions addressing rape
myths, e.g.: If the judge tells you that the law does not require that the state
prove injury, will you be able to follow the law as the judge gives it to you, or
will you assume that no injury means no rape?
o Whenever possible the prosecutor should use the language from these
instructions in her voir dire and summation.
o Thus, when the judge instructs the jurors on the law, they will have already
heard the same language from the prosecutor. The jurors will then be
somewhat familiar with the language and remember that the prosecutor used
the law throughout the trial. Be careful not to instruct the jury on the law or
you will incur the judges ire.

Explain Voir Dire Exercise: (45 minutes) Participants develop voir dire
questions for State v. Michael Cates at individual tables (15 minutes), followed by
a report back for 30 minutes.

Instructions for State v. Michael Cates Voir Dire - Report Back: Take the next
thirty minutes to explore the voir dire questions developed by the participants.
Write each question on a flip chart. With respect to each question:
o Question #1: Ask each table to share its #1 voir dire question as long as it is
not repetitive.
Why did you ask that question?
What did you hope to get from it?
What did you hope to learn about that juror?
o Question #2: Ask each table to share its #2 voir dire question as long as there
is no repetition.
o Question #3: Ask each table to share its #3 voir dire question as long as there
is no repetition.
If the group did not develop questions to detect an undetected rapist, the presenter
should probe the group about what type of questions might accomplish this
objective.

For suggestions see: Undetected Rapist Faculty Cheat Sheet on page 128 and
Resources Book, Volume II, Tab 12,Voire Dire and Jury Instructions, where
you will find specific suggestions for questions and instructions relating to
consent, force, resistance, alcohol, rape between parties who know each other, and
delayed reporting.

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Refer Participants to the Resources Book: Other material relevant to this


section is in Volume I, Tab 2, Rape Myths: A Prosecutors Special Challenge
and in Volume II, Tab 12, Voir Dire.

Special Instructions for Faculty:


Day III ends here. Be sure that participants have completed and turned in their daily
evaluations.

CONCLUSION DAY III

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WORKSHEET (OVERVIEW)
STATE v. MICHAEL CATES
Voir Dire Exercise

Directions: Please take five minutes to craft questions for the State v. Michael Cates voir
dire. Assume your voir dire will be curtailed, so rank your own questions in order of
importance. List your priority questions on the Individual Participants Worksheet. Then
discuss your questions with your tablemates for ten minutes and agree on the groups top
three to five questions, again in rank order. These should be listed on the reporters
Worksheet. The reporter will be the participant whose last name is closest to the letter A,
who has not been a reporter for an earlier exercises. During the 30 minute report back
each reporter will give the tables #1 question. After some discussion, the reporter will
go on to question #2. If there is time after discussion, we will go on to #3 and so forth.

As a pre-conference assignment you were asked What was the best voir dire
question you ever asked or heard about in a nonstranger rape or sexual assault
case? Is that question applicable to the State v. Michael Cates case?

What three to five questions would you most want to ask if crafting voir dire
questions for State v. Michael Cates?

What questions would you ask to identify an undetected rapist on the panel?

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INDIVIDUAL PARTICIPANTS WORKSHEET


STATE v. MICHAEL CATES
Voir Dire Exercise
Directions: Please take five minutes to craft questions for the State v. Michael Cates voir
dire. Discuss your questions with your tablemates. During the 30-minute report back, the
reporter will give the tables # 1 question. If there is time after discussion, the presenter
will go on to the next question, and so forth.
The three to five questions I would most want to ask are:

1.

2.

3.

4.

5.

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REPORTERS WORKSHEET
STATE v. MICHAEL CATES
Voir Dire Exercise
Directions:

The reporter is the person at the table whose first name begins with the
letter A or the letter closest to it. As the reporter, please use this sheet to
record the groups top three to five questions in rank order. During the 10minute table discussion the group should determine which voir dire
question will be ordered as #1, 2, 3, and so forth. During the 30-minute
report back the reporter will give the tables # 1 question. If time permits,
we will go on to # 2, and so forth.

1.

2.

3.

4.

5.
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FACULTY CHEAT SHEET


STATE v. MICHAEL CATES

Voir Dire
Undetected Rapist
If Group Did Not Develop Questions On This Issue
Ask groupHow would you identify and eliminate an undetected rapist on your jury?

Must underscore need for open-ended question.

If Group Did Develop Questions On This Issue

Highlight this for the group.

Must underscore need for open-ended question.

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DNA PRIMER
Faculty Needed:

DNA Expert

Format for Unit:

Lecture

Time Allotted:

Day IV: 8:30 to 10:00 a.m.


1 hour, 30 minutes

Content Overview Basic DNA:


This segment covers the basics of what DNA is, how it can help you prove a case, and
how to examine a DNA expert.
Visuals for Unit:

Slides are in Appendix 19, DNA. These visuals provide the outline of the
substantive content of the experts presentation.

The Participants Binder Contains:

Slides for this unit at Tab 12, page 12-2.

Special Instructions for the Faculty:

Lecture Outline/Visuals: The visuals provide the outline of the substantive


content of this section. The expert should use these visuals as the outline of the
presentation.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume II, Tab 15, DNA.

10:00-10:15

Break

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DRUG-FACILITATED RAPE
Faculty Needed:

Forensic Toxicologist
Prosecutor Presenter(s)

Format for Unit:

Lecture and Discussion

Time Allotted:

Day IV: 10:15 a.m. to 12:15 p.m.


2 hours

Content Overview Drug-Facilitated Rape:


Drug-facilitated rape is a critical and growing problem across the country. Investigating
and prosecuting these cases demands great sophistication because of the victims
fragmented or obliterated memory and the frequent lack of medical evidence that drugs
were used. In order to handle these cases, prosecutors need to educate their local police,
hospitals and medical professionals about the indicia of drug-facilitated rape and how to
collect and preserve the medical evidence.
Visuals for Unit:

Slides are in Appendix 20, Drug-Facilitated Rape. These visuals provide the
outline of the substantive content of the experts presentation.

The Participants Binder Contains:

Slides for this unit at Tab 13, page 13-2.

Special Instructions for the Faculty:

Lecture Outline/Visuals: The visuals provide the outline of the outline of the
substantive content of this section. The expert should use these visuals as the
outline of the presentation.

Videotape Substitution for Lecture: This segment will cover all these issues
using a lecture and discussion format. However, if you are unable to locate a
prosecutor presenter who has tried drug-facilitated rape cases and a forensic
toxicologist, The American Prosecutors Research Institute has produced a
videotape and manual entitled, The Prosecution of Rohypnol and GHB Related
Sexual Assaults (1999). You can use the APRI videotape as a substitute for a live
presentation.
To order The Prosecution of Rohypnol and GHB
Related Sexual Assaults, contact:
Tamara Kitchen,
142Administrative Assistant
American Prosecutors Research Institute
Violence Against Women Program

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Refer the Participants to the Resources Book: Other material relevant to this
section is in Volume II, Tab 16, Drug-Facilitated Rape.

12:15-1:15

Lunch

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IMPROVING YOUR AGENCY: HOW TO GET THERE


Faculty Needed:

Program Moderator
Prosecutor Presenter(s)

Format for Unit:

Small Group Exercise

Time Allotted:

Day IV: 1:15 to 2:15 p.m.


1 hour

Content Overview Improving Your Agency:

This segment focuses on what participants will do with what they have
learned at this program. What do they want to implement at home? What
concrete actions will they take to do it? What resources will they need? What
barriers will they confront? The segment addresses improving participants
agencies from within (e.g., encouraging vertical prosecution units, using these
training materials for others in the office) and how to foster the interagency
cooperation so essential to improving the justice systems handling of sexual
assault cases.
This discussion will recognize the fact that prosecutors offices are organizations headed
by elected officials and participants may have limited authority to introduce these
suggestions and reforms.
This Faculty Manual Contains:

Commitment Worksheets on pages 134, 135 and 136.

The Participants Binder Contains:

Commitment Worksheets at Tab 14, pages 14-2 to 14-4.

Special Instructions for the Faculty:

Explain Exercise What I Will Do At Home: (20 minutes) Direct participants


to complete the three-part exercise that asks:
1. What one thing will you do personally to incorporate what you
have learned during this program?
2. What one thing will you do in your office to incorporate what

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you have learned during this program?


3. What one thing will you do in your community to incorporate
what you have learned during this program?
For each question participants are asked what they will commit to, what barriers
they anticipate and how they will overcome them. Participants complete
worksheets and discuss at their tables the actions they will take.

Facilitate a report back: Plenary Discussion (40 minutes) Moderator calls on


selected participants to state their commitments, then invites other participants to
offer ideas to help the selected participants accomplish their goals. No speaker
repeats a commitment another has stated. After the first speaker, other speakers
offer only enhancements or new commitments.

Distribute postcards: The program moderator should hand each participant a


postage-paid postcard. The moderator asks the participants to self-address the
postcard and, on the reverse side, list the responses to the three-question exercise.
The program moderator collects the postcards at the end of the discussion. The
postcards should be mailed to the participants after a three to four month period.
Receiving the postcard will tickle participants memory about what was learned
during the program and their commitment to bring it home.

Refer Participants to the Resources Book: Other material relevant to this


section is in Volume II, Tab 17, Improving Your Agency, Interagency
Cooperation and Working with the Community.

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Commitment 1 List one thing you will do personally to incorporate what you have
learned in this program:

Questions
1. What barriers do you anticipate?

2. How will you overcome them?

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Commitment 2 List one thing you will do in your office to incorporate what you
have learned in this program:

Questions
1. What barriers do you anticipate?

2. How will you overcome them?

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Commitment 3 List one thing you will do for your community to incorporate what
you have learned in this program:

Questions
1. What barriers do you anticipate?

2. How will you overcome them?

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CLOSING REMARKS, CERTIFICATES OF COMPLETION


& C.L.E. CREDIT FORM
Faculty Needed:

Program Moderator

Time Allotted:

Day IV: 2:15 to 2:30 p.m.


15 minutes

Content Overview Closing Remarks:


The program moderator should take a few minutes to make closing remarks. Some
important points to cover include:

emphasizing that the topics covered in this program current social science and
medical research, voir dire, sex offender information, cultural competence,
evidence collection techniques have direct application in the prosecution of
these difficult cases;
encouraging prosecutors to minimize retraumatization of victims, while still
protecting the case and meeting statutory requirements;
reminding participants that the work they do, while very difficult, is greatly
appreciated and they are courageous to do it;
giving them a large dose of encouragement;
explaining that the written material in the Resources Book, Volumes I and II will
serve as an excellent resource in the future; and
thanking the participants for their attention and participation.

Special Instructions for the Faculty:

Note on evaluations and forms: At the end of these remarks, ask participants to
complete and submit their evaluations. Allow at least five minutes writing time.
Once all evaluations are in, present each participant with a Certificate of
Completion and a C.L.E. form (if your program has received prior approval as a
C.L.E provider).

Certificate of Completion: Refer to Appendix 21 for a sample Certificate of


Completion.

CONCLUSION OF PROGRAM
CONCLUSION OF PROGRAM

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TABLE OF CONTENTS
VOLUME I
Tab 1:

Prosecutors Code of Conduct


NATIONAL DISTRICT ATTORNEYS ASSOCIATION, THE NATIONAL
PROSECUTION STANDARDS: ETHICS AND PROFESSIONALISM (2nd ed. 1991).

Tab 2:

Rape Myths: The Prosecutors Special Challenge


Lynn Hecht Schafran, Barriers to Credibility: Understanding and
Countering Rape Myths, in UNDERSTANDING SEXUAL VIOLENCE: THE
JUDICIAL RESPONSE TO STRANGER AND NONSTRANGER RAPE AND SEXUAL
ASSAULT, Tab 2 (National Judicial Education Program 1994), adapted
from Lynn Hecht Schafran, Writing and Reading About Rape: A Primer,
66 ST. JOHNS L. REV. 979 (1993).
Judge Richard T. Andrias, Rape Myths: A Persistent Problem in Defining
and Prosecuting Rape, ABA CRIMINAL JUSTICE, Summer 1992, at 3.

Tab 3:

Victim Impact
Overviews:
Lynn Hecht Schafran & Danielle Ben-Jehuda, Rape Victims and Victim
Impact, in UNDERSTANDING SEXUAL VIOLENCE: THE JUDICIAL RESPONSE
TO STRANGER AND NONSTRANGER RAPE AND SEXUAL ASSAULT, Unit I
(National Judicial Education Program 1994).
Gail Abarbanel, LCSW, & Gloria Richman, LCSW, The Rape Victim, in
CRISIS INTERVENTION BOOK 2: THE PRACTITIONERS SOURCEBOOK FOR
BRIEF THERAPY, at 1 (Howard J. Parad & Libbie G. Parad, eds., Family
Service America, Milwaukee, WI, 1990).

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CRIME VICTIMS TREATMENT CENTER, ST. LUKES-ROOSEVELT HOSPITAL


CENTER, N.Y., COMMON PHYSICAL AND PSYCHOLOGICAL REACTIONS TO
SEXUAL VIOLENCE (date unknown).
CRIME VICTIMS TREATMENT CENTER, ST. LUKES-ROOSEVELT HOSPITAL
CENTER, N.Y., POST-TRAUMATIC STRESS DISORDER (date unknown)
(Summarizing AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC
CRITERIA AND STATISTIC MANUAL OF MENTAL DISORDERS (4th ed.) (date
unknown).
David Lisak, Ph.D., The Neurobiology of Trauma, in UNDERSTANDING
SEXUAL VIOLENCE: PROSECUTING ADULT RAPE AND SEXUAL ASSAULT
CASES (National Judicial Education Program 2000).
BOULDER COUNTY RAPE CRISIS TEAM, RAPE TRAUMA SYMPTOM RATING
SCALE (date unknown).
Female Victims:
NATIONAL CENTER FOR VICTIMS OF CRIME, ARLINGTON, VA & CRIME
VICTIMS RESEARCH AND TREATMENT CENTER, RAPE IN AMERICA:
A REPORT TO THE NATION (1992).
Anne Seymour & Anna Whalley, Sexual Assault, in NATIONAL VICTIM
ASSISTANCE ACADEMY TEXT, at 10-1 (Victims Assistance Legal
Organization & Office for Victims of Crime, U.S. Dept of Justice 2000).
Mark A. Whatley, For Better or Worse: The Case of Marital Rape,
VIOLENCE AND VICTIMS, Spring 1993, at 29 (abstract).
Male Victims:
Nicholas Groth & Ann Wolbert Burgess, Male Rape: Offenders and
Victims, AM. J. PSYCHIATRY, July 1980, at 806.

Tab 4:

Cultural Competence and Victim Sensitivity


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Overviews:
Joel Epstein & Stacia Langenbahn, Outreach to Previously Underserved
Populations, in CRIMINAL JUSTICE AND COMMUNITY RESPONSE TO RAPE,
at 66 (Office of Justice Programs, U.S. Dept of Justice 1994).
Linda E. Ledray, Working with Special Populations, in SEXUAL ASSAULT
NURSE EXAMINER, DEVELOPMENT AND OPERATION GUIDE, at 79 (Office
for Victims Crime, U.S. Dept of Justice) (date unknown).
Women of Color:
Women of Color Resource Center, Sexual Assault Resources for Women
of Color (visited March 2000)
<http://www.coloredgirls.org/dirindex.html>.

Understanding Sexual Violence


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African-American Women:
KIRSTON L. ISGRO, SURVIVING: HOW SEXUAL ASSAULT SERVICE
PROVIDERS CAN BETTER UNDERSTAND AND SERVE CULTURALLY DIVERSE
POPULATIONS (Columbus Urban League Rape Prevention Program 1994).
Lynn Hecht Schafran, Women of Color as Victims of Gender-Based
Violence, in WHEN BIAS COMPOUNDS: INSURING EQUAL JUSTICE FOR
WOMEN OF COLOR IN THE COURTS, Unit III (National Judicial Education
Program 1998).
Disabled Women:
Nora J. Baladerian, Table of Contents, from INTERVIEWING SKILLS TO USE
WITH ABUSE VICTIMS WHO HAVE DEVELOPMENTAL DISABILITIES, at v
(Spectrum Institute 1998).
Elderly Women:
Kathleen Quinn, Older Women: Hidden Sexual Abuse Victims, COALITION
COMMENTARY, Winter 1994, at 1.
Immigrant Women:
LESLYE ORLOFF & RACHEL LITTLE, OVERVIEW OF DOMESTIC VIOLENCE
AND BATTERED IMMIGRANT ISSUES (Immigrant Women Program, NOW
Legal Defense & Education Fund 1999).
MASSACHUSETTS DEPT OF PUBLIC HEALTH, Immigrant and Refugee
Survivors, in SEXUAL ASSAULT TRAINING MANUAL, at 13-1 (date
unknown).
Jewish American Women:
Heather Robinson, Overcoming the Taboo, THE JEWISH WEEK, May 5,
2000 (page unknown).

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Native American Women:


See Schafran, supra under African-American Women.
Asian Pacific American Women:
Jean Dietz, Rape turns refugee women into the silent sufferers, THE
GLOBE, June 8, 1986 (page unknown).
Nilda Rimonte, Pacific-Asian Survivors, in LOS ANGELES COUNTY
PROTOCOL, at 106 (date unknown) (abstract).*
Lesbians:
BROOKLYN WOMENS ANTI-RAPE EXCHANGE, Lesbian Rape Survivors, in
THE BWARE TRAINING MANUAL, at 103 (date unknown) (abstract).*

Tab 5:

Working with Victim Advocates


DONNA MEDLEY, GOVERNMENT-BASED AND COMMUNITY-BASED VICTIM
ADVOCATES: ROLES AND RESPONSIBILITIES (date unknown), adapted from
TEXAS COUNCIL AGAINST DOMESTIC VIOLENCE & THE BATTERED
WOMENS JUSTICE PROJECT, COMMUNITY-BASED VICTIM ADVOCATES:
ROLES AND RESPONSIBILITIES (date unknown).

Tab 6:

Sexual Assault Forensic Examiners, SANE and Medical


Evidence
Testimony of Dr. Ingrid Flores, People v. Eaddy, No. 4291/97 (N.Y. Crim.
Ct. July 6, 1999).
Anatomical Charts, Medical Glossary and Acronyms:

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Female Pelvic Organs (side view).


Diagram of Vaginal Area.
ANNE MARIE HABER, PARTIAL GLOSSARY OF FORENSIC TERMS (date
unknown).
ANNE MARIE HABER, SOME TECHNICAL TERMS FOR ANATOMY, INJURY,
AND FORENSIC EQUIPMENT & TECHNIQUES (2000).
NEW YORK PROSECUTORS TRAINING INSTITUTE, GLOSSARY OF MEDICAL
TERMS (April 1999).
MARY DANDREA, DISTRICT ATTORNEYS OFFICE-BRONX COUNTY,
MEDICAL AND MENTAL HEALTH CENTER ABBREVIATIONS AND SYMBOLS.

_______________________________________________________
* Article on file with the National Judicial Education Program.

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SAFE and SANE:


LINDA E. LEDRAY, Sane Program Model, in SEXUAL ASSAULT NURSE
EXAMINER, DEVELOPMENT AND OPERATION GUIDE, at 7 (Office for
Victims Crime, U.S. Dept of Justice 1997).
LINDA E. LEDRAY, SART: A Community Approach, in SEXUAL ASSAULT
NURSE EXAMINER, DEVELOPMENT AND OPERATION GUIDE, at 13 (Office
for Victims Crime, U.S. Dept of Justice 1997).
LINDA E. LEDRAY, Sane Program Operation, in SEXUAL ASSAULT NURSE
EXAMINER, DEVELOPMENT AND OPERATION GUIDE, at 63 (Office for
Victims Crime, U.S. Dept of Justice 1997).
LINDA E. LEDRAY, Clinical Skills Competency Checklist, in SEXUAL
ASSAULT NURSE EXAMINER, DEVELOPMENT AND OPERATION GUIDE, at
175 (Office for Victims Crime, U.S. Dept of Justice 1997).
LINDA E. LEDRAY, Appendix J (reprinting various forms), in SEXUAL
ASSAULT NURSE EXAMINER, DEVELOPMENT AND OPERATION GUIDE, at
203 (Office for Victims Crime, U.S. Dept of Justice 1997).
Linda E. Ledray & Lee Barry, SANE Expert and Factual Testimony,
JOURNAL OF EMERGENCY NURSING, June 1998, at 284 (abstract).
DONNA GAFFNEY, DOCUMENTATION FOR SEXUAL ASSAULT EXAMINERS
(2000).
Colposcopy:
Leland C. Lenahan, et al., Colposcopy in Evaluation of the Adult Sexual
Assault Victim, AMERICAN JOURNAL OF EMERGENCY MEDICINE, March
1998, at 183 (abstract).
Margaret J. McGregor, M.D., MHSc, et al., Examination for sexual
assault: Is the documentation of physical injury associated with the laying

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of charges? A retrospective cohort study, CANADIAN MEDICAL


ASSOCIATION JOURNAL, June 1999, at 1565.

Tab 7:

Expert Witnesses
AMERICAN PROSECUTORS RESEARCH INSTITUTE, Expert Testimony, in
VIOLENCE AGAINST WOMEN ADVANCED SEXUAL ASSAULT WORKSHOP:
THE PROSECUTION OF SEXUAL ASSAULT CASES, at 107 (1999).
ROBERTA M. BALDINI, FORENSIC SEROLOGY: DIRECT EXAMINATION
(1997).
Testimony of Carol Jenny, M.D., Director, Child Protection Team,
Childrens Hospital, Denver, Colorado, People v. Garvin, No. 91CR1007
(Colo. August 5, 1992).
CRIME VICTIMS TREATMENT CENTER, ST. LUKES-ROOSEVELT HOSPITAL
CENTER, N.Y., USES OF EXPERT WITNESSES (date unknown).
Claudia J. Bayliff, How An Expert Can Help You Support the
Complaintant and Prove Your Case More Effectively, in UNDERSTANDING
SEXUAL VIOLENCE: PROSECUTING ADULT RAPE AND SEXUAL ASSAULT
CASES (National Judicial Education Program 2000).
Claudia J. Bayliff, A Prosecutors Checklist: Using A Psychological
Expert in a Sexual Assault Case, in UNDERSTANDING SEXUAL VIOLENCE:
PROSECUTING ADULT RAPE AND SEXUAL ASSAULT CASES (National
Judicial Education Program 2000), adapted from ANNE MUNCH, THE
PRACTICAL USE OF EXPERT WITNESSES IN CASES INVOLVING VIOLENCE
AGAINST WOMEN, presented at the Fourth Annual STOP Violence
Against Women Conference, Baton Rouge, LA (2000).
Claudia J. Bayliff, Experts Checklist: Guide to Courtroom Testimony in
Sexual Assault Cases, in UNDERSTANDING SEXUAL VIOLENCE:
PROSECUTING ADULT RAPE AND SEXUAL ASSAULT CASES (National
Judicial Education Program 2000), adapted from ANNE MUNCH, THE
PRACTICAL USE OF EXPERT WITNESSES IN CASES INVOLVING VIOLENCE

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AGAINST WOMEN, presented at the Fourth Annual STOP Violence


Against Women Conference, Baton Rouge, LA (2000).
Claudia J. Bayliff, Tips on Working with a Medical Expert in a Sexual
Assault Case, in UNDERSTANDING SEXUAL VIOLENCE: PROSECUTING
ADULT RAPE AND SEXUAL ASSAULT CASES (National Judicial Education
Program 2000), adapted from Michael Weaver, Optimizing
Physician/Nurse Role in the Criminal Justice System, in NATIONAL NONSTRANGER SEXUAL ASSAULT SYMPOSIUM PROCEEDINGS REPORT (Denver
Sexual Assault Interagency Council 2000).
Michael Weaver, M.D., FACEP, Optimizing Physician/Nurse Role in the
Criminal Justice System, in NATIONAL NON-STRANGER SEXUAL ASSAULT
SYMPOSIUM PROCEEDINGS REPORT (Denver Sexual Assault Interagency
Council 2000).
Laura E. Boeschen, et al., Rape Trauma Experts in the Courtroom,
PSYCHOLOGY, PUBLIC POLICY AND LAW, Vol. 4, No. 1/2 (1998), at 414
(abstract).
Claudia J. Bayliff, Expert Testimony in Sexual Assault Cases: Selected
Case Law from Around the Country, in UNDERSTANDING SEXUAL
VIOLENCE: PROSECUTING ADULT RAPE AND SEXUAL ASSAULT CASES
(National Judicial Education Program 2000).

Tab 8:

Investigation Techniques
SUSAN MORLEY, TRAINING IN THE HANDLING OF SEX OFFENSE
INVESTIGATIONS FOR THE NEW YORK POLICE DEPARTMENT (1997).
ANNE MUNCH, SEXUAL ASSAULT INVESTIGATION CHECKLIST (The Ending
Violence Against Women Project) (date unknown).
HAROLD EISENGA, USING PRETEXT PHONE CALLS IN SEXUAL ASSAULT
INVESTIGATIONS (date unknown). See also U.S. Dept of Justice materials
under Drug-Facilitated Rape.

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TRINKA PORRATA, INVESTIGATIVE CONSIDERATIONS WHEN DRUGS ARE


SUSPECTED IN SEXUAL ASSAULT CASES AND SAMPLE SEARCH WARRANT
(date unknown).
Michael Welner & Elizabeth Delfs, The Forensic Panel (visited October
2000) <http://www.forensicpanel.com>.

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TABLE OF CONTENTS
VOLUME II

Tab 9

Interviewing and Witness Preparation


AMERICAN PROSECUTORS RESEARCH INSTITUTE, Victim Interview, in
VIOLENCE AGAINST WOMEN ADVANCED SEXUAL ASSAULT WORKSHOP:
THE PROSECUTION OF SEXUAL ASSAULT CASES, at 69 (1999).
Roberta M. Baldini, Witness Interview, in UNDERSTANDING SEXUAL
VIOLENCE: PROSECUTING ADULT RAPE AND SEXUAL ASSAULT CASES
(National Judicial Education Program 2000).
Amanda Konradi, Understanding Rape Survivors Preparation for Court,
VIOLENCE AGAINST WOMEN, March 1996, at 25 (abstract).
Amanda Konradi, Too Little, Too Late: Prosecutors Pre-Court
Preparation of Rape Survivors, 22 LAW AND SOCIAL INQUIRY 1 (1997).
PATRICIA POWERS, ADVOCACY OF VICTIMS RIGHTS IN THE NEW
MILLENNIUM: AN ERA OF COMMUNITIES (1999).
ROBERT T. JOHNSON, DISTRICT ATTORNEYS OFFICE-BRONX COUNTY,
N.Y., DOMESTIC AND SEXUAL VIOLENCE CASES: EVIDENCE COLLECTION,
DOMESTIC VIOLENCE/SEXUAL ABUSE HISTORY AND EVALUATION
CHECKLIST (date unknown).

Tab 10

Motion and Trial Practice


SEAN ROCHE, DISTRICT ATTORNEYS OFFICE-BRONX COUNTY, N.Y.,
CHECKLIST/TRANSFER SHEET (date unknown).

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AMERICAN PROSECUTORS RESEARCH INSTITUTE, Pre-Trial Motions, in


VIOLENCE AGAINST WOMEN ADVANCED SEXUAL ASSAULT WORKSHOP:
THE PROSECUTION OF SEXUAL ASSAULT CASES, at 75 (1999).
AMERICAN PROSECUTORS RESEARCH INSTITUTE, Tough Cases, in
VIOLENCE AGAINST WOMEN ADVANCED SEXUAL ASSAULT WORKSHOP:
THE PROSECUTION OF SEXUAL ASSAULT CASES, at 223 (1999).
AMERICAN PROSECUTORS RESEARCH INSTITUTE, Trying the Case, in
VIOLENCE AGAINST WOMEN ADVANCED SEXUAL ASSAULT
WORKSHOP:THE PROSECUTION OF SEXUAL ASSAULT CASES, at 203 (1999).

Tab 11

Vicarious Trauma
DONNA GAFFNEY, PH. D., ASSAULT ON THE SENSES AND THE PSYCHE:
SECONDARY TRAUMATIZATION (2000).
Linda E. Ledray, Maintaining a Healthy Ongoing Program, in SEXUAL
ASSAULT NURSE EXAMINER, DEVELOPMENT AND OPERATION GUIDE, at
127 (Office for Victims Crime, U.S. Department of Justice) (date
unknown).
Anne K. Seymour, Mental Health Needs: Stress Management, in
NATIONAL VICTIM ASSISTANCE ACADEMY TEXT, at 6.2-1 (U.S. Dept of
Justice 1999).

Tab 12

Voir Dire
LYNN HECHT SCHAFRAN, WHAT THE RESEARCH ABOUT RAPE JURORS
TELLS US, (2000).
ROBERTA BALDINI & JUDGE LESLIE CROCKER SNYDER, VOIR DIRE AND
SUMMATION: THE CRITICAL LINK (1999).

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Julie A. Wright, Using the Female Perspective in Prosecuting Rape


Cases, THE PROSECUTOR (Texas District & County Attorneys
Association), January/February 1995, at 19.
RICHARD A. BROWN, DISTRICT ATTORNEYS OFFICE-QUEENS COUNTY,
N.Y., Voir Dire in Sex Crimes Cases, in PROSECUTORS MANUAL FOR SEX
CRIMES, at 20 (1997).
ROBERTA M. BALDINI, ET AL., JURY SELECTION IN CASES INVOLVING
GAY/LESBIAN VICTIMS: SUGGESTIONS FOR ASSISTANT DISTRICT
ATTORNEYS (1995).
PATRICIA POWERS, STRATEGIC VOIR DIRE (1999).
SEX OFFENSE/DOMESTIC VIOLENCE SECTION, U.S. ATTORNEYS OFFICE,
WASHINGTON, D.C., SAMPLE JURY QUESTIONNAIRES USED IN SEXUAL
ASSAULT CASES (1997).
Lynn Hecht Schafran & Danielle Ben-Jehuda, Voir Dire and Jury
Instruction, in UNDERSTANDING SEXUAL VIOLENCE: THE JUDICIAL
RESPONSE TO STRANGER AND NONSTRANGER RAPE AND SEXUAL ASSAULT,
Unit IV (National Judicial Education Program 2000).

Tab 13

Sex Offenders, Sentencing and Sex Offender Treatment


Lynn Hecht Schafran & Danielle Ben-Jehuda, Sex Offenders, Treatment
and Sentencing, in UNDERSTANDING SEXUAL VIOLENCE: THE JUDICIAL
RESPONSE TO STRANGER AND NONSTRANGER RAPE AND SEXUAL ASSAULT,
Unit III (National Judicial Education Program 2000).
Linda S. Grossman, et al., Are Sex Offenders Treatable? A Research
Overview, PSYCHIATRIC SERVICES, March 1999, at 349.

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Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2013 Legal Momentum

David B. Wexler, Therapeutic Jurisprudence and the Criminal Courts, in


LAW IN A THERAPUTIC KEY: DEVELOPMENTS IN THERAPEUTIC
JURISPRUDENCE, at 157 (Carolina Academic Press 1996).
AMERICAN PROSECUTORS RESEARCH INSTITUTE, Effective Sentencing, in
VIOLENCE AGAINST WOMEN ADVANCED SEXUAL ASSAULT WORKSHOP:
THE PROSECUTION OF SEXUAL ASSAULT CASES, at 245 (1999).

Tab 14

Cross-Examination
JAMES W. MCELHANEY, Cross Examination, 74 A.B.A.J. 117 (1988).
Roberta M. Baldini, Cross-Examination: Impeachment with Prior
Inconsistent Statement, in UNDERSTANDING SEXUAL VIOLENCE:
PROSECUTING ADULT RAPE AND SEXUAL ASSAULT CASES (National
Judicial Education Program 2000).

Tab 15

DNA
NATIONAL INSTITUTE OF JUSTICE, WHAT EVERY LAW ENFORCEMENT
OFFICER SHOULD KNOW ABOUT DNA EVIDENCE (date unknown).
BARRY DUCEMAN, THREE GIFTS OF FORENSIC DNA TECHNOLOGY
(Statewide Conference on the Investigation & Prosecution of Sexual
Assault and Domestic Violence, Poughkeepsie, N.Y., September 1998).
PATRICIA LOFTUS, M.S.N., M.S.F., CODIS: The Combined
Deoxyribonucleic Acid Index System for DNA Typing, THE CRIME VICTIMS
REPORT, January/February 1999, at 6.
ARLENE KENT-WILKINSON, R.N., M.N., FORENSIC LISTSERVS.
MELISSA MOURGES, DISTRICT ATTORNEYS OFFICE-NEW YORK COUNTY,
N.Y., HYPOTHETICAL SEXUAL ASSAULT CASE (date unknown).

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2013 Legal Momentum

MELISSA MOURGES, DISTRICT ATTORNEYS OFFICE-NEW YORK COUNTY,


N.Y., SAMPLE QUESTIONS FOR A DNA EXPERT (date unknown).
MELISSA MOURGES, DISTRICT ATTORNEYS OFFICE-NEW YORK COUNTY,
N.Y., EVIDENCE FROM CITY OF NEW YORK, DEPARTMENT OF HEALTH,
OFFICE OF CHIEF MEDICAL EXAMINER (1997).
AMERICAN PROSECUTORS RESEARCH INSTITUTE, DNA Expert, in
VIOLENCE AGAINST WOMEN ADVANCED SEXUAL ASSAULT WORKSHOP:
THE PROSECUTION OF SEXUAL ASSAULT CASES, at 149 (1999).
AMERICAN PROSECUTORS RESEARCH INSTITUTE, Overview of Services, in
AMERICAN PROSECUTORS RESEARCH INSTITUTE DNA LEGAL ASSISTANCE
UNIT (2000).
Bill Dedman, Warrant Seeks Rape Suspect Based Only on DNA, N.Y.
TIMES, October 7, 1999 (page unknown) (abstract).
Michael Welner & Elizabeth Delfs, The Forensic Panel (visited OCTOBER
2000) <http://www.forensicpanel.com>.

Tab 16

Drug-Facilitated Rape
Michael Welner & Elizabeth Delfs, Rapist in a Glass: The Big Picture of
the Rohypnol Wars, 1 THE FORENSIC ECHO 11 (1997). See also Michael
Welner & Elizabeth Delfs, The Forensic Panel (visited OCTOBER 2000)
<http://www.forensicpanel.com>; see also enclosed flyer.
AMERICAN PROSECUTORS RESEARCH INSTITUTE, Table of Contents, in THE
PROSECUTION OF ROHYPNOL AND GHB RELATED SEXUAL ASSAULTS (date
unknown).
U.S. DEPARTMENT OF JUSTICE, DRUG-FACILITATED RAPE: OVERVIEW AND
INVESTIGATIVE CONSIDERATIONS (March 1998).

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2013 Legal Momentum

U.S. DEPARTMENT OF JUSTICE, GHB (GAMMA HYDROXYBUTYRATE)


INFORMATION SHEET (1998).
HAROLD EISENGA, USING PRETEXT PHONE CALLS IN SEXUAL ASSAULT
INVESTIGATIONS (date unknown).
U.S. DEPARTMENT OF JUSTICE, DRUG-FACILITATED RAPE DRUGS (date
unknown) (abstract).

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2013 Legal Momentum

Tab 17

Improving Your Agency, Interagency Cooperation and


Working with the Community
U.S. DEPARTMENT OF JUSTICE, Prosecution, in NEW DIRECTIONS FROM
ST
THE FIELD: VICTIMS RIGHTS AND SERVICES FOR THE 21 CENTURY, at 73
(1996).
NATIONAL CENTER FOR VICTIMS OF CRIME, Prosecution as a Component
of Victim-Centered Case Management, in LOOKING BACK, MOVING
FORWARD: GUIDEBOOK FOR COMMUNITIES RESPONDING TO SEXUAL
ASSAULT AND A PROGRAM FOR COMMUNITIES RESPONDING TO SEXUAL
ASSAULT, at VI-1 (1993).
Martha R. Burt, et al., Developing a Community System, in Taking
Action: Mobilizing Your Community Against Rape, at 251 (1997)
(unpublished manuscript, on file with the National Judicial Education
Program).
Alexandra H. Walker, Sexual Assault Protocol Summit, in THE NORTH
CAROLINA PROTOCOL DEVELOPMENT SUMMITS: A MONOGRAPH FOR THE
STOP VIOLENCE AGAINST WOMEN GRANTS TECHNICAL ASSISTANCE
PROJECT, at 25 (January 1998).

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Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2013 Legal Momentum

TABLE OF APPENDICES
Appendix 1 Evaluation Instruments
Appendix 2 Case File: State v. Michael Cates
Appendix 3 Welcome Slide
Appendix 4 State v. Michael Cates: Case Evaluation and Ethical Considerations
Slides
Appendix 5 Victim Impact Slides
Appendix 6 Neurobiology of Trauma Slides
Appendix 7 Interviewing the Victim Slides
Appendix 8 Enhancing the Prosecutor/Victim Partnership: Building Trust Slides
Appendix 9 Direct Examination Slides
Appendix 10 Sexual Assault Forensic Examiners Slides
Appendix 11 Amanda Browns Medical History
Appendix 12 Expert Witnesses Slides
Appendix 13 Vicarious Trauma Slide

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Understanding Sexual Violence


Prosecuting Adult Rape and Sexual Assault Cases
National Judicial Education Program, Legal Momentum
Copyright 2013 Legal Momentum

Appendix 14 Offenders: Myths and Realities Overview Slides


Appendix 15 Offenders: Serial Offending and Prior Bad Acts Slides
Appendix 16 Offenders: Pleas and Sentencing Slides
Appendix 17 Cross Examination Slides
Appendix 18 Voir Dire Slides
Appendix 19 DNA Slides
Appendix 20 Drug Facilitated Rape Slides
Appendix 21 Certificate of Completion

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